Cox v. Kingsboro Medical Group

214 A.D.2d 150, 632 N.Y.S.2d 139, 1995 N.Y. App. Div. LEXIS 9318

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 18, 1995
• Status: Published

Opinions

OPINION OF THE COURT

Sullivan, J.

I

We hold today that a plaintiff in a medical malpractice action may not avoid the effect of CPLR 214-a by attempting to impute continuous treatment by one physician to another physician based solely upon allegations of a vague and amorphous "relationship” between the two medical professionals.

The injured plaintiff, Winston Cox, had a history of varicose veins and was a patient of the defendant Kingsboro Medical Group (hereinafter Kingsboro). In the course of treatment, Kingsboro referred Mr. Cox to the defendant Brookdale Surgical Associates (hereinafter Brookdale) for diagnostic testing. As conceded by the plaintiffs’ counsel, "Brookdale Surgical Associates were vascular surgeons who were independent of [Kingsboro] and who saw patients [who] were referred to them by [Kingsboro]” (emphasis supplied).

On March 30, 1988, a Brookdale technician performed noninvasive tests on Mr. Cox, and the defendant Dr. Levowitz, a member of Brookdale, reviewed those test results and dictated a report to Kingsboro on April 1, 1988. The report essentially confirmed Kingsboro’s initial diagnosis and ruled out acute deep venous thrombotic occlusions as the cause of Mr. Cox’s condition.

Mr. Cox returned to Brookdale’s offices on April 6, 1988, to discuss his test results. On that date, he saw Dr. Levowitz for the first and only time. Dr. Levowitz examined Mr. Cox, performed additional doppler studies, and reviewed his previous report, but could not identify the cause of the problem. In his records, Dr. Levowitz noted that Mr. Cox’s condition "[wjill require extensive investigation including venography and possibly MRI to determine the cause. The possibility of an arterial venous fistula cannot be excluded”. Dr. Levowitz communicated the need for further investigation to Mr. Cox and closed his notes with the comment "[additional report to Dr. E. Wolf of the Kingsboro Medical Group”. However, it appears that no such report was ever sent.

In the ensuing months, Mr. Cox continued to visit Kingsboro because of worsening pain in the affected leg. On August 21, 1989, he was referred to Brookdale Hospital and was seen in an emergency consultation on the following day by the defendant Dr. Flores, who also was a member of Brookdale. Mr. Cox was hospitalized, and, after further tests were performed, his left leg was amputated above the knee. A postamputation examination of the leg confirmed that Mr. Cox had suffered from an apparently longstanding arteriovenous fistula of the popliteal artery and popliteal vein.

The plaintiffs subsequently commenced this malpractice action, serving Brookdale on November 3, 1990, Dr. Flores on November 5, 1990, and Dr. Levowitz on November 8, 1990. Each of these defendants interposed an answer asserting the expiration of the two-year-and-six-month limitations period of CPLR 214-a as an affirmative defense. Following examinations before trial, the defendants moved for summary judgment dismissing the complaint as timed barred insofar as it is asserted against Dr. Levowitz and dismissing those causes of action asserted against Brookdale and Dr. Flores based on treatment allegedly rendered on March 30, April 1, or April 6, 1988 as, inter alia, time barred. The Supreme Court granted the motion.

II

Contrary to the plaintiffs’ contention, Dr. Levowitz established his entitlement to judgment as a matter of law under CPLR 214-a, since any alleged malpractice committed by him had to have occurred on April 6, 1988, the only date on which he saw and communicated with Mr. Cox. Inasmuch as service on Dr. Levowitz was made on November 8, 1990, some two years and seven months later, the action against him was patently untimely. Indeed, nothing offered by the plaintiffs in opposition to the motion for summary judgment and partial summary judgment even suggested any treatment by Dr. Levowitz beyond April 6, 1988. Rather, the plaintiffs principally relied upon the doctrine of imputed or constructive continuous treatment, alleging that Dr. Levowitz misdiagnosed Mr. Cox’s condition and that Kingsboro administered treatment based on that misdiagnosis, thus reasoning that the entire period of subsequent treatment by Kingsboro should be imputed to Dr. Levowitz. A similar rationale was employed in Fonda v Paulsen (46 AD2d 540), where the Court applied imputed continuous treatment to a pathologist who allegedly had misdiagnosed a biopsy, thereby concluding that an issue of fact existed with respect to whether the action, commenced some five years later, was nevertheless timely.

However, in McDermott v Torre (56 NY2d 399, 403), the Court of Appeals held that continuous treatment by a physician could not be imputed to an independent laboratory "in the absence of an agency or other relevant relationship between the laboratory and doctor or some relevant continuing relation between the laboratory and the patient”. The Court of Appeals specifically observed that the policy underlying the continuous treatment doctrine would not be advanced by applying the doctrine to a laboratory, since "a laboratory neither has a continuing or other relevant relationship with the patient nor, as an independent contractor, does it act as an agent for the doctor or otherwise act in relevant association with the physician” (McDermott v Torre, supra, at 408). Furthermore, in Meath v Mishrick (68 NY2d 992), the Court of Appeals relied upon the reasoning in McDermott v Torre (supra) in finding that an attending physician’s continuous treatment should not be imputed to a hospital pathologist. The Court held that there was no continuing relation between the pathologist and the patient which would advance the policy underlying the continuous treatment doctrine, nor was there a sufficient relationship between the pathologist and the attending physician, notwithstanding that both were affiliated with the hospital where the patient was treated and where the alleged misdiagnosis occurred. Significantly, the Court further observed that to the extent Fonda v Paulsen (supra) and its progeny were to the contrary, they should not be followed.

Accordingly, the mere existence of a misdiagnosis upon which other physicians rely is not sufficient to warrant the imputation of continuous treatment, since "the continuing nature of a diagnosis or misdiagnosis does not itself constitute continuous treatment” (Swift v Colman, 196 AD2d 150, 153). Applying these principles to the instant case, it was incumbent upon the plaintiffs to establish either a continuing relationship between Dr. Levowitz and Mr. Cox, or an agency or other relevant relationship between Dr. Levowitz and Kingsboro (see generally, Kavanaugh v Nussbaum, 71 NY2d 535, 547; Reeck v Huntington Hosp., 215 AD2d 464). The plaintiffs failed to demonstrate either. Mr. Cox only underwent diagnostic testing at Brookdale and then returned on a single occasion to speak with Dr. Levowitz regarding the results. The mere fact that Dr. Levowitz personally examined Mr. Cox, a circumstance to which the dissent attaches great significance, does not mandate the application of imputed continuous treatment or abrogate the principles set forth in McDermott v Torre (56 NY2d 399, supra) and Meath v Mishrick (68 NY2d 992, supra). Rather, those principles have been uniformly applied in subsequent decisions (see, e.g., Pierre-Louis v Ching-Yuan Hwa, 182 AD2d 55 [where defendant doctor treated plaintiff at cardiology clinic, subsequent treatment by different cardiologist not imputed to defendant]; De Peralta v Presbyterian Hosp., 121 AD2d 346 [where defendant surgeon referred plaintiff to another doctor for physical therapy, the treatment rendered by the therapist could not be imputed to the surgeon]; Swartz v Karlan, 107 AD2d 801 [where general practitioner referred plaintiff’s decedent to defendant neurologist who diagnosed his condition and treated him, following which plaintiff was treated only by the general practitioner, the neurologist was not charged with subsequent treatment]). In each of the foregoing cases, the defendant physician examined and treated the patient, yet the principles discussed in McDermott and Meath precluded the imputation of continuous treatment. No greater relationship between Dr. Levowitz and Mr. Cox has been established in this case, nor would the policy underlying the continuous treatment doctrine be advanced by application of that doctrine to these facts (see generally, Rizk v Cohen, 73 NY2d 98).

Our dissenting colleagues misapprehend the respective burdens of proof on a motion for summary judgment. It is well settled that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). As one of the movants for summary judgment, Dr. Levowitz met this burden by establishing that the action was commenced against him more than two years and six months after he last rendered treatment to Mr. Cox. Contrary to the dissenters’ view, he had no further obligation to negate any potential claim of imputed continuous treatment raised by the plaintiffs (see, Connell v Hayden, 83 AD2d 30, 39). Rather, the burden shifted to the plaintiffs to demonstrate the existence of a genuine triable issue of fact regarding the applicability of continuous treatment. However, the plaintiffs merely alleged that continuous treatment should be imputed because Mr. Cox was referred by Kingsboro to Brookdale and therefore Dr. Levowitz should have foreseen that Kingsboro would rely upon any error or omission by him in rendering future treatment to Mr. Cox. As the decisions discussed above make clear, this argument is patently inadequate to support the imputation of continuous treatment by Kingsboro to Brookdale and its member physicians. Significantly, the plaintiffs repeatedly conceded that Kingsboro and Brookdale were separate and independent entities, and they never opposed the motion for summary judgment on the wholly speculative grounds now advanced by the dissent; i.e., that some amorphous "relationship” may exist between Kingsboro and Brookdale as a result of some unspecified "contractual arrangement” or "custom and practice” between the two, or because they are both affiliated with the Health Insurance Plan of Greater New York (hereinafter HIP).

III

With regard to the existence of an agency or relevant relationship between Dr. Levowitz and Kingsboro, the dissenters’ mere statement that Kingsboro is a medical group providing primary care under HIP and that Brookdale is an independent group of specialists to whom Kingsboro may refer HIP subscribers falls woefully short of satisfying the plaintiffs’ burden. The plaintiffs have failed to set forth any evidence to demonstrate that the relationship between Kingsboro and Brookdale was in any manner different than that between any independent physician who refers a patient to any other independent specialist. There appears to be no relationship between Kingsboro and Brookdale (or Brookdale’s individual members) other than the aforementioned referrals (see, Pierre-Louis v Ching-Yuan Hwa, 182 AD2d 55, supra; Evra v Hillcrest Gen. Hosp., 111 AD2d 740; Swartz v Karlan, 107 AD2d 801, supra).

Furthermore, it is clear that HIP is a nonprofit membership corporation that sells medical expense indemnity insurance. It provides indemnified medical care through a series of independent contractors or medical groups, with medical services being rendered in accordance with both accepted medical and surgical practices and standards adopted by the Medical Control Board of HIP (see, Shapiro v Health Ins. Plan, 7 NY2d 56; Mitts v H.I.P. of Greater N. Y., 104 AD2d 318; McGrorty v Health Ins. Plan, 98 AD2d 1000; Levine v Health Ins. Plan, NYLJ, May 31, 1985, at 18, col 3). This fact hardly bespeaks the type of relationship that should subject independent contractors to additional liability under the concept of imputed continuous treatment. Rather, a fair reading of McDermott v Torre (56 NY2d 399, supra) and Meath v Mishrick (68 NY2d 992, supra) indicates that the relationship between the referring physician and the diagnostician or specialist must arise out of or pertain to the treatment of the patient in order to justify the imputation of continuous treatment. Otherwise, virtually any relationship, regardless of how far removed from the actual care of the patient (and thus removed from the goal of the continuous treatment doctrine to foster an ongoing relationship between the patient and the physician from onset to cure) could be used as a predicate for imputing continuous treatment. The mere fact that different physicians accept patients who participate in the same membership health insurance plan is simply too remote a nexus to be of any consequence in determining this issue (see generally, Meath v Mishrick, supra [continuous treatment not imputed even though attending physician was affiliated with same hospital where pathologist was employed and where patient was diagnosed and treated]). In any event, the plaintiffs have simply failed to introduce sufficient evidence to raise an issue of fact regarding an agency or other relevant relationship between medical groups and specialists within HIP.

Additionally, we question the dissent’s wholly gratuitous discussion of "managed care” in this case. While Mr. Cox is a HIP member, there is no evidence in this record demonstrating that HIP is a managed care plan. Even if it is, implicit in the dissent’s discussion is the disturbing suggestion that Dr. Levowitz, as a consultant, would be subject to imputed continuous treatment in connection with referrals from HIP physicians, but not from other physicians. We are left to ponder what impact such a rule would have on attempts to enlist more physicians into managed care plans, and whether such a policy determination is not more properly within the province of the Legislature (see, Ganess v City of New York, 85 NY2d 733).

IV

Discovery in this case, including the taking of extensive depositions, has been completed, and the plaintiffs do not contend that they need any further disclosure in order to establish the requisite relationship. Hence, the record does not support the dissent’s unwarranted conclusion that additional discovery is needed. Similarly, the dissenters’ reliance upon Colonresto v Good Samaritan Hosp. (128 AD2d 825) is misplaced. Unlike the matter before us, little discovery had been conducted in Colonresto at the time summary judgment was granted.

Other matters raised in the dissent require comment. The dissenters contend that the physician-patient relationship between Dr. Levowitz and Mr. Cox continued for at least a "reasonable time” beyond their only meeting on April 6, 1988, because Dr. Levowitz was supposed to send a further report to Kingsboro and because he anticipated that Mr. Cox would at some future date be referred back to him. It is sufficient to note that this novel argument to extend the Statute of Limitations for an unspecified period based on the mere expectation of continuous treatment finds no support in statutory or decisional law.

Additionally, while the dissent lists numerous purported issues of fact warranting a trial, the majority of these so-called issues focuses upon whether the actions of Dr. Levowitz and others actually constituted medical malpractice. However, inasmuch as we are concerned here with whether the action was timely commenced, the question of whether the action was facially meritorious is irrelevant. The remaining "issues”, concerning the vague alleged "relationship” between Kingsboro and Brookdale, were not raised in the Supreme Court. Rather, they are speculative and illusory questions belatedly manufactured by the plaintiffs and adopted by the dissenters in an effort to justify the denial of summary judgment. Since " '[a] shadowy semblance of an issue is not enough to defeat the motion’ ” (Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341, quoting Hanrog Distrib. Corp. v Hanioti, 10 Misc 2d 659, 660), the plaintiffs failed to sustain their burden in opposing summary judgment.

Accordingly, Dr. Levowitz established his entitlement to summary judgment and the plaintiffs failed to raise a material triable issue of fact in response thereto. Moreover, inasmuch as the claims against Dr. Levowitz may not serve as a predicate for vicarious liability on the part of Brookdale or Dr. Flores (see, Karaduman v Newsday, Inc., 51 NY2d 531), the Supreme Court correctly granted partial summary judgment dismissing all causes of action against them accruing on or before April 6, 1988.

We have considered the remaining contentions of the plaintiffs and find them to be without merit.