Dugan v. Troy Pediatrics, LLP

105 A.D.3d 1188, 963 N.Y.S.2d 443
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 11, 2013
StatusPublished
Cited by13 cases

This text of 105 A.D.3d 1188 (Dugan v. Troy Pediatrics, LLP) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dugan v. Troy Pediatrics, LLP, 105 A.D.3d 1188, 963 N.Y.S.2d 443 (N.Y. Ct. App. 2013).

Opinion

Stein, J.

Cross appeals from an order of the Supreme Court (Zwack, J.), entered January 10, 2012 in Rensselaer County, which partially granted defendants’ motion for summary judgment dismissing the complaint.

Plaintiff (born in 1985) was a patient of defendant Pamela C. Walders—a pediatrician employed by defendant Troy Pediatrics, LLP—from the time of plaintiffs birth until her 11-year-old annual checkup in September 1996. According to plaintiff’s mother, at the time plaintiff turned three years old, she grew concerned about the development of plaintiff’s right foot. In particular, plaintiffs feet were not the same size and her right arch appeared to be higher than the left. Plaintiff’s mother claims that the deformity of plaintiffs right foot and other related symptoms worsened as plaintiff got older. Sometime after plaintiffs last annual checkup with Walders in September 1996, plaintiffs mother changed to pediatrician Patricia Jolie. During Jolie’s first examination of plaintiff in 1997, she observed plaintiffs right foot and referred her to a podiatrist. As a result of his examination, the podiatrist referred plaintiff to a pediatric neurologist, who ultimately diagnosed plaintiff with a tethered spine, a condition that caused, among other things, the deformities in her right foot, and required plaintiff to undergo multiple surgeries.

On December 23, 2005, plaintiff commenced this medical malpractice action and alleged, among other things, that Walders’ failure to refer plaintiff to a specialist deviated from the ac[1189]*1189cepted standard of care and that plaintiff was injured as a result of the delayed diagnosis and treatment of her condition. In their answer to the complaint, defendants asserted various affirmative defenses including, as relevant here, that the claims were time-barred. Following discovery, defendants moved for summary judgment dismissing the complaint on the ground that Walders did not deviate from the accepted standard of care and, alternatively, that the claims were time-barred. Supreme Court partially granted defendants’ motion by dismissing as time-barred all claims that accrued more than 10 years prior to the commencement of the action. As to the remaining claims, the court found that triable issues of fact existed regarding whether Walders departed from the accepted standard of care. These cross appeals ensued and we affirm.

Turning first to plaintiffs appeal, Supreme Court found that the continuous treatment doctrine did not apply and, therefore, that any claims that arose prior to December 23, 1995 were untimely, as such claims were barred by the 2V2-year statute of limitations and were outside the 10-year maximum infancy toll (see CPLR 208, 214-a; Cahill v Lat, 39 AD3d 1013, 1014 [2007]). Thus, the first issue before us is whether Supreme Court erred in determining that the continuous treatment doctrine did not apply, in which case all of plaintiffs claims would be timely.

The continuous treatment doctrine serves to toll the limitations period during a patient’s course of treatment with his or her physician (see Simons v Bassett Health Care, 73 AD3d 1252, 1254 [2010]; Aulita v Chang, 44 AD3d 1206, 1208 [2007]). “Essential to the application of the continuous treatment doctrine is ‘a course of treatment established with respect to the condition that gives rise to the lawsuit’ ” (Plummer v New York City Health & Hosps. Corp., 98 NY2d 263, 268 [2002], quoting Nykorchuck v Henriques, 78 NY2d 255, 258-259 [1991]). Significantly, a failure to establish a course of treatment is not a course of treatment (see Nykorchuck v Henriques, 78 NY2d at 259; Baptiste v Harding-Marin, 88 AD3d 752, 753-754 [2011], lv denied 19 NY3d 808 [2012]; Johanson v Sullivan, 68 AD3d 1303, 1304-1305 [2009]).

In support of their motion, defendants argued that Walders never treated plaintiff for any condition related to her foot, and proffered, among other things, plaintiffs medical records, the deposition testimony of Walders, plaintiff and her parents, as well as an affidavit from defendants’ expert, a board-certified pediatrician. Notably, plaintiff’s medical records, which document the treatment provided by Walders, do not reveal that Walders diagnosed any condition or provided any treatment re[1190]*1190lated to plaintiffs foot. In fact, the only remotely related entry appearing in such records is a notation in 1989 that merely indicates “arches good.”

In opposition to the motion, plaintiff claimed that, up until she last saw Walders in 1996, Walders had continuously treated her for a condition related to her foot. To support this contention, plaintiff relied upon, among other things, her mother’s affidavit alleging that she first raised concerns with Walders about plaintiffs right foot at plaintiffs three-year-old annual checkup and that she repeated her concerns each year.1 Plaintiffs mother avers that Walders observed plaintiffs foot, high arch and gait at these appointments, and always responded that there was nothing to worry about and that plaintiff would grow out of the condition. We are unpersuaded by plaintiff’s claims that the concerns raised by her mother to Walders during her annual visits were evidence of treatment of her foot condition by Walders. A “course of treatment speaks to affirmative and ongoing conduct by the physician” which is recognized as such by both the patient and physician (Gomez v Katz, 61 AD3d 108, 112 [2009] [internal quotation marks omitted]). Notably, a “[r]outine examination of a seemingly healthy patient, or visits concerning matters unrelated to the condition at issue giving rise to the claim, are insufficient to invoke the benefit of the [continuous treatment] doctrine” (Plummer v New York City Health & Hosps. Corp., 98 NY2d at 268).

Here, the record is devoid of any evidence that would support a finding that Walders provided affirmative treatment to plaintiff for a condition related to her foot and Walders’ failure to diagnose or treat the condition in response to the concerns of plaintiffs mother does not, by itself, establish an ongoing course of treatment (see Nykorchuck v Henriques, 78 NY2d at 259; Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1026 [2004]). The record does not reflect that Walders ever indicated that she would monitor a condition related to plaintiffs foot, nor has plaintiffs mother asserted that Walders assured her that she would do so. Moreover, when plaintiff was nine years old and was experiencing foot pain, her parents took her to see orthopedic surgeon Robert Heineman.2 Heineman [1191]*1191thereafter sent a report to Walders indicating, among other things, that a physical examination showed that the arch of plaintiffs right foot was “slightly higher” than the left and that it had a higher and greater “dorsal prominence of the [first] metatarsal tarsal joint.” Heineman also noted that he would “follow [plaintiff] with interest,” suggesting that he would monitor the condition. Walders never discussed Heineman’s report or examination with plaintiffs parents. Under these circumstances, Supreme Court properly concluded that the continuous treatment doctrine did not apply and, accordingly, that all claims occurring more than 10 years prior to the commencement of the action were untimely.

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Cite This Page — Counsel Stack

Bluebook (online)
105 A.D.3d 1188, 963 N.Y.S.2d 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dugan-v-troy-pediatrics-llp-nyappdiv-2013.