Marabello v. City of New York

99 A.D.2d 133, 472 N.Y.S.2d 933, 1984 N.Y. App. Div. LEXIS 16530

Opinions

OPINION OF THE COURT

Boyers, J.

This appeal raises a novel issue, namely, whether the doctrine of continuous treatment (see Borgia v City of New York, 12 NY2d 151; CPLR 214-a) may be applied to toll the 90-day period within which a notice of claim must be filed (see General Municipal Law, § 50-e; New York City Health and Hospitals Corporation Act, § 20, subd 2 [L 1969, ch 1016, § 1, as amd L 1973, ch 877, § 1]) where a plaintiff patient is successively treated for the same or related illnesses or injuries by different municipal medical facilities under the aegis of the New York City Health and Hospitals Corporation. We conclude that while the continuous treatment exception may be applied under such circumstances, that principle is, as a matter of law, inapplicable to the particular facts of this case.

Recognizing that “the provision and delivery of comprehensive care and treatment of the ill and infirm, both physical and mental, are of vital and paramount concern and essential to the protection and promotion of the health, safety and welfare of the inhabitants of the state of New York and the city of New York” (New York City Health and Hospitals Corporation Act, § 2 [L 1969, ch 1016]), and finding that there were “inadequate general and specialized health care facilities” in New York City, the State Legislature, in 1969, created a separate entity to operate the municipal health facilities in our city, namely, the public benefit corporation known as the New York City Health and Hospitals Corporation (New York City Health and Hospitals Corporation Act, § 2 [L 1969, ch 1016, § 1]; Harlem Hosp. Center Med. Bd. v Hoffman, 84 AD2d 272, 273, mot to dismiss app granted 56 NY2d 807). “In addition to transferring the operating responsibility from the city to the New York City Health and Hospitals Corporation, this legislation changed the notice of claim procedure. Under the new statutory [system], it became necessary for a party sustaining injury allegedly attributable to [such] health facilities to file a verified notice of claim with the corporation prior to the commencement of a lawsuit” (Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 665; see, generally, New York City Health and Hospitals Corporation Act, § 2 [L 1969, ch 1016]; General Municipal Law, § 50-e).

In the case at bar, plaintiff sustained physical injuries on July 11,1979 when he was thrown from the motorcycle on which he was riding pillion when that vehicle collided with an automobile.

Footnotes

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As a result, plaintiff was removed by ambulance to the emergency room of the municipal health care facility known as Coney Island Hospital, where he was treated and released with instructions to return, should he still have pain. Plaintiff returned to the hospital emergency room seven days later and had previously inserted sutures removed from his cheek. Thereafter, plaintiff returned to Coney Island Hospital on several occasions complaining of pain in the low back and sacral areas. He was referred to the Department of Rehabilitation, and treated for “[status post] injury to low back and sacral area”, receiving, inter alia, seven diathermy treatments at the physical therapy unit between August 14, 1979 and September 11, 1979.

Plaintiff’s last three recorded visits to Coney Island Hospital occurred on March 29, July 7 and August 4,1980. On the first occasion, plaintiff’s lumbar-sacral spine was X-rayed and he was given medication, having been diagnosed as suffering from “low back-pain”. On the last two occasions, plaintiff registered with the emergency room receiving clerk complaining of pain of the left side and pain in the body from the waist down, respectively. On the first of these visits, plaintiff was called for treatment on three occasions but failed to answer. On the last occasion, his vital signs were taken but he was not examined by a physician since he “walked out” of the emergency room. (As plaintiff’s notice of claim referring to the alleged medical malpractice occurring at Coney Island Hospital was served on August 25, 1980, the only visits to that institution within the statutory 90-day period for such service were the visits of July 7 and August 4, 1980.)

At the statutory hearing held by the comptroller on the Coney Island claim, plaintiff testified that he had consulted with private physicians about disturbances in bowel and bladder function. He did not, however, make any complaint with respect to such symptoms to anyone at Coney Island Hospital, because, plaintiff testified, he was not being treated by that institution any longer. These physicians included Dr. Spargel, who referred plaintiff to Dr. Benjamin, a neurologist and Dr. Riscalla, a urologist (who plaintiff first visited about three weeks after the motorcycle accident) who referred plaintiff to neurologist Dr. Zuckerman. It was Dr. Zuckerman who, in August, 1980, referred plaintiff to another physician practicing the same specialty, Dr. Kasy. It was Dr. Kasy who arranged for plaintiff’s admission on August 8, 1980, to Metropolitan Hospital, another municipal facility under the jurisdiction of the New York City Health and Hospitals Corporation (see New York City Health and Hospitals Corporation Act, § 5, subd 8 [L 1969, ch 1016, § 1]). Plaintiff was found to have been suffering from weakness of the lower extremities which had progressed to paralysis three weeks prior to the Metropolitan admission and thereafter underwent surgery to remove a spinal tumor on August 11 and August 20, 1980.

It was on August 25, 1980, while plaintiff was hospitalized at Metropolitan, that he served a notice of claim upon the comptroller and the Health and Hospitals Corporation asserting a claim for medical malpractice founded upon the failure of Coney Island Hospital to properly treat and diagnose his condition. Plaintiff made no application for leave to serve a late notice (see General Municipal Law, § 50-e, subd 5). Plaintiff remained an inpatient at Metropolitan for six and one-half weeks. Thereafter, Metropolitan referred him to Kings County Hospital, another municipal health facility, where plaintiff underwent radiation therapy and where he was hospitalized for the removal of bladder calculi in February, 1981.

On or about July 2, 1981, plaintiff moved, inter alia, to supplement his original notice of claim nunc pro tunc so as to include claims against Metropolitan Hospital and Kings County Hospital and two individual defendants. In support, plaintiff asserted that he left the care of Metropolitan Hospital suffering from “incontinence” which condition resulted from the medical and surgical malpractice of Dr. Kasy and other physicians on the staffs of Metropolitan and Kings County Hospitals.

Denying, without prejudice to renew, that branch of plaintiff’s motion which sought permission to supplement his original notice of claim, Justice Aronin at Special Term wrote in pertinent part: “The plaintiff has submitted no factual information from which the court could conclude that service of the original notice of claim was timely. If the timeliness of the original notice of claim rests on a ‘continuous treatment’ formula, Supporting facts must be presented (Fonda v Paulsen, 46 AD2d 540; see also McKinney’s CPLR, Practice Commentary and Supplemental Practice Commentaries to CPLR 214-a by Joseph McLaughlin 1975, 1979).”

Plaintiff’s subsequent motion to supplement his notice of claim nunc pro tunc to include allegations arising from his care, treatment and confinement at Metropolitan and Kings County Hospitals was granted, without memorandum, by order of Special Term (Shaw, J.), dated February 8, 1982 and the municipal defendants appeal.

As a general rule, an action for medical malpractice accrues on the date when the act, omission or failure complained of occurs (CPLR 214-a; see discussion in Siegel, NY Practice, § 42). Two exceptions, initially delineated by our Court of Appeals and subsequently codified by the Legislature, serve to temper the harshness of this rule, namely (1) where there is “continuous treatment” (CPLR 214-a; Borgia v City of New York, 12 NY2d 151, supra), and (2) where the malpractice consists of the defendant’s leaving a “foreign object” in the body (CPLR 214-a; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; see discussion in Barrella v Richmond Mem. Hosp., 88 AD2d 379, 382-383; McLaughlin, Practice Commentary and Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 214-a, pp 168-175,1982-1983 Pocket Part). Such exceptions also apply to the timeliness of service of a notice of claim, a condition precedent to the commencement of an action against a municipal hospital under the jurisdiction of the Health and Hospitals Corporation (see Borgia v City of New York, supra, p 155; see, also, Davis v City of New York, 38 NY2d 257; Cotto v City of New York, 99 AD2d 748).

By his brief, plaintiff seeks to persuade this court that because Coney Island Hospital, Metropolitan Hospital and Kings County Hospital are all facilities under the aegis of the Health and Hospitals Corporation, they are to be regarded as a single entity for the purposes of litigation, and accordingly, treatment rendered by one such institu tion (Metropolitan) for a condition which another (Coney Island) failed to diagnose and treat, constitutes sufficient basis for the invocation of the doctrine of continuous treatment. Opposing this view, the municipal defendants assert that the State Legislature, in creating the Health and Hospitals Corporation, clearly indicated an intent that each facility herein remain separate, apart and distinct. Thus the municipal defendants contend application of the doctrine would constitute error even were the treatment rendered among various municipal facilities for the same condition or complaint because such institutions must be considered separate entities for the purpose of the evaluation of claims. In other words, they allege treatment at different public institutions can never constitute a sufficient basis to trigger the doctrine.

In actions brought against the United States under the Federal Tort Claims Act (US Code, tit 28, § 2671 et seq.) the courts, applying Federal law, have generally rejected finding a toll of the Tort Claims Act limitations provision by virtue of the continuous treatment doctrine. The Federal courts “typically assume its existence and find it inapplicable on the facts” (Kelly v United States, 554 F Supp 1001, 1003; see, also, Dundon v United States, 559 F Supp 469, 472). For example, in Dundon (supra), decedent, a veteran, had received treatment by different government physicians at various Veterans Administration hospitals for psychiatric and neurological problems. District Judge Bramwell held that the Federal Tort Claims Act limitations provision was not tolled under such facts by the continuous treatment doctrine (the court did, however, find a toll on the alternative basis that decedent’s comatose state rendered him unable to comprehend the nature and cause of his injuries), observing “[t]he contention that it is sufficient that the decedent continued to receive treatment at facilities owned and operated by the government and was continuously treated by government physicians has been consistently rejected by the courts where a patient receives improper care from one government physician and is thereafter treated by others not accused of that malpractice. See e.g., Camire v. United States, 535 F.2d 749, 750 (2d Cir. 1976); DeGirolamo v. United States, 518 F Supp. (E.D.N.Y. 1981)” (Dundon v United States, 559 F Supp 469, 473, supra; emphasis supplied).

However, in interpreting the law of this State, this court is not constrained by such decisions, and in my opinion, in creating the Health and Hospitals Corporation, the State Legislature did not evince an intent to bar the toll afforded by the continuous treatment doctrine where the record evidences sufficient facts for its application. Significantly, our lawmakers wrote:

“There are serious shortages in the number of personnel adequately trained and qualified to provide the quality care and treatment needed. A myriad of complex and often deleterious constraints and restrictions place a harmful burden on the delivery of such care and treatment. Technological advances have been such that portions of the health and medical services now delivered by the city are not as advanced as they should be. A system permitting legal, financial and managerial flexibility is required for the provision and delivery of high quality, dignified and comprehensive care and treatment for the ill and infirm, particularly to those who can least afford such services * * * The inadequacy and shortage of health facilities derives from such factors among others as the rapid technological changes and advances taking place in the medical field. These changes and advances have created the need for substantial structural and functional changes in existing facilities. Many of the health facilities of the city are overcrowded. Buildings are deteriorating and many suffer harm as a result of piecemeal and uncoordinated additions * * * Procedures inherent in the administration of health and medical services as heretofore established obstruct and impair efficient operation of health and medical resources.

“It is found, declared and determined that in order to accomplish the purposes herein recited, to provide the needed health and medical services and health facilities, a public benefit corporation, to be known as the New York City health and hospital[s] corporation, should be created to provide such health and medical services and health facilities and to otherwise carry out such purposes” (New York City Health and Hospitals Corporation Act, § 2 [L 1969, ch 1016, § 1; emphasis supplied]).

Implicit in such declaration of policy and statement of purposes is the intent to create an umbrella health and hospitals corporation to facilitate the development of optimum efficiency and holistic health care by establishing flexibility of operation among the various municipal health facilities under its jurisdiction. Indeed, there exists a similar close nexus between certain municipal hospitals maintained and operated by the Health and Hospitals Corporation and certain privately owned and operated hospitals (see, e.g., Cotto v City of New York, supra). It would, for example, be anomalistic, contrary to underlying legislative precepts and against the foundation upon which the continuous treatment doctrine rests to require, by virtue of the “single entity” concept, that a patient, who is transferred or referred from one municipal hospital to another because the latter facility is possessed of sophisticated medical equipment capable of special and expensive procedures such as computerized axial tomography, interrupt the investigative and therapeutic efforts made on his behalf to serve a notice of claim where such efforts are for the same or a related condition.

While it is generally true that what constitutes continuous treatment is a question to be resolved by the trier of fact (see McDermott v Torre, 56 NY2d 399; Richardson v Orentreich, 97 AD2d 9), on this record no trier of fact could properly conclude that the treatments received by plaintiff at Metropolitan Hospital were continuous to those received at Coney Island Hospital. This is because plaintiff, by his own testimony at the comptroller’s hearing and by his own acts, clearly evidenced an intent not to return to Coney Island Hospital for treatment after his visit on March 29, 1980. Such intent, to eschew the care afforded by that municipal health facility, was published by plaintiff’s admitted consultation with various private (“outside”) physicians. His mere registration at the Coney Island emergency room, without prior appointment and without thereafter waiting to see a physician, cannot serve to revive his claim and bolster his assertion of continuity of treatment. This is particularly evident in view of the fact that (1) on the occasion of his July 7, 1980 registration at the Coney Island emergency room, plaintiff was repeatedly called by emergency room personnel to see the duty physician, namely, at 8:29 a.m., 9:26 a.m. and 10:04 a.m., each time there being no response, and (2) on August 4, 1980, plaintiff registered with emergency admitting at 4:42 p.m., and by 4:48 p.m., he had “walked out” of the facility. Thus it is clear from the record that both plaintiff and Coney Island Hospital considered plaintiff’s treatment to have been completed. Additionally, despite Special Term’s specific request that plaintiff, upon his subsequent motion to supplement his notice of claim nunc pro tunc, set forth supporting factual information indicative of continuous treatment, his papers failed to allege any facts consistent therewith, for example: (a) that plaintiff was referred by Coney Island Hospital to Metropolitan Hospital (see Cotto v City of New York, 99 AD2d 748, supra), (b) that on July 7 and/or August 4,1980, plaintiff was in fact treated by a physician at the emergency room of Coney Island Hospital, or (c) that there were other contacts sufficient to raise an issue of fact as to the continuing nature of the medical services rendered plaintiff by Coney Island Hospital.

Accordingly, for these reasons it must be concluded that in this case the doctrine of continuous treatment may not be invoked to toll the running of the statutory claim period (Davis v City of New York, 38 NY2d 257, supra; see Barrella v Richmond Mem. Hosp., 88 AD2d 379, supra; cf. Richardson v Orentreich, 97 AD2d 9, supra).

While the record indicates that plaintiff sought treatment for low back pain at Coney Island Hospital on July 5,1979, prior to the accident, he testified at a subsequent statutory comptroller’s hearing that he had never had any problems or complaints with respect to his back or pain in his legs prior to the motorcycle accident.