Prinz-Schwartz v. Levitan

17 A.D.3d 175, 796 N.Y.S.2d 36, 2005 N.Y. App. Div. LEXIS 3945
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 14, 2005
StatusPublished
Cited by8 cases

This text of 17 A.D.3d 175 (Prinz-Schwartz v. Levitan) 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
Prinz-Schwartz v. Levitan, 17 A.D.3d 175, 796 N.Y.S.2d 36, 2005 N.Y. App. Div. LEXIS 3945 (N.Y. Ct. App. 2005).

Opinions

Order, Supreme Court, New York County (Eileen Bransten, J.), entered April 4, 2004, which granted defendants-respondents’ motion and cross motion for partial summary judgment dismissing any claims for medical malpractice accruing prior to 2V2 years before the commencement of the action, reversed, on the law, without costs, the motion and cross motion denied, and the matter remanded for further proceedings.

In this medical malpractice action alleging the failure to diagnose plaintiffs breast cancer, the issue to be decided is whether plaintiff’s regularly scheduled breast examinations over the course of 12 years, which yielded negative results for breast cancer but occasionally indicated “fibrocystic changes” or other irregularities, constituted continuous treatment sufficient to toll the statute of limitations until the completion of plaintiffs treatment. Because the conflicting evidence in the record raises a triable issue of fact as to whether plaintiff was being monitored for a specific breast condition during the course of [176]*176these regular examinations, we reverse and deny defendants’ motions.

Between 1986 and 2000, plaintiff Iris Prinz-Schwartz received annual or semi-annual breast examinations at defendant Memorial Sloan-Kettering-Guttman Diagnostic Center (Sloan-Kettering). With the exception of the September 2000 examination which led to the cancer diagnosis, each of these examinations resulted in negative findings for breast cancer. During some of the examinations, however, particularly those in 1988, 1992 and 1995, certain irregularities were noted in the examiner’s reports despite the negative findings.

For instance, on plaintiffs second visit on May 11, 1988, the mammography report revealed “two masses in outer area of left breast (probable cyst),” and Sloan-Kettering advised plaintiff in a letter that it would like to examine plaintiff in six months “as part of our follow-up program.” Plaintiff’s follow-up mammogram in November 1988 was ruled negative and a one-year recall was recommended. However, the 1989 mammogram report also showed “fibrocystic changes.”

Plaintiffs test results in her 1991 mammogram were completely normal. However, her January 1992 mammogram revealed fibrocystic changes in both breasts and an “asymmetrical density” in her left breast, requiring a follow-up six-month recall. The October 1992 examination revealed these same irregularities, but a subsequent May 1993 exam indicated that the asymmetrical density was no longer visible.

The results of plaintiffs May 1994 and July 1995 exam revealed bilateral “lumpy breasts,” and the 1995 results also showed a “dense parenchymal pattern.” However, these results were considered normal by defendants. The results of the 1996, 1997, 1998 and 1999 exams were all normal and did not identify any irregularities.

On October 27, 1999 (a week before her scheduled November 1999 examination), plaintiff complained to defendant Dr. Eve Levitan about “bumps” in her lower left neck. Dr. Levitan detected a smooth, nonattached lymph node in the left, supraclavicular area, and mobile cysts in both breasts. Since plaintiffs annual breast examination was already scheduled for November 5, 1999, plaintiff waited until the next week for that exam. Defendant Dr. Michael Cohen interpreted those exam results as negative and forwarded the same to Dr. Levitan. Plaintiff also sought a second opinion from defendant Dr. Robert Fafalak, M.D., who likewise concluded that the two nodes on plaintiffs neck did not require further treatment.

A September 2000 breast examination was performed by Dr. [177]*177Yitzchak Ariel, Dr. Levitan’s associate, who detected a small cyst in plaintiffs left breast and ordered an immediate mammogram for the next day. Plaintiffs September 27, 2000 mammogram revealed a 1.2 centimeter mass of the left breast, which a needle biopsy confirmed as infiltrating ductal carcinoma.

Plaintiff commenced the instant action for medical malpractice against defendants on December 10, 2001. Her complaint and bill of particulars limited her malpractice allegations to acts or omissions “in or about 1998 and continuing through a continuous treatment until in or about November 2000.”

After completion of discovery, defendants Sloan-Kettering and Dr. Cohen moved to dismiss as time-barred all claims of alleged malpractice arising prior to June 10, 1999. Dr. Levitan cross-moved for similar relief. Plaintiffs submitted opposition to the motion, including an expert affirmation of a doctor licensed to practice in New Jersey, alleging that plaintiff was under the continuous care and treatment of defendants from May 1988 through September 27, 2000 for a “fibrocystic breast condition.”

Supreme Court granted the motion and cross motion for summary judgment, dismissing all claims of malpractice arising prior to June 10, 1999. The court held that because routine annual examinations are generally insufficient to establish a continuous course of treatment, the continuous treatment doctrine did not apply in this case. It found that the annual or semi-annual breast examinations of plaintiff were routine in nature and that no evidence existed that she was ever treated for a fibrocystic condition by defendants. We reverse.

An action for medical malpractice must be commenced within two years and six months of the date of accrual (CPLR 214-a; see Massie v Crawford, 78 NY2d 516, 519 [1991]), which generally occurs on the date the alleged malpractice takes place (Massie at 519). However, under the continuous treatment doctrine exception, the 21/2-year period does not begin to run until the end of the course of treatment “when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint” (Borgia v City of New York, 12 NY2d 151, 155 [1962]).

The premise underlying the continuous treatment doctrine is that “a patient should not be required to interrupt corrective medical treatment by a physician and undermine the continuing trust in the physician-patient relationship in order to ensure the timeliness of a medical malpractice action” (Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998], cit[178]*178ingRizk v Cohen, 73 NY2d 98, 104 [1989], and Borgia, 12 NY2d at 156).

However, “[a] patient’s continuing general relationship with a physician, or routine, periodic health examinations will not satisfy the doctrine’s requirement of ‘continuous treatment’ of the condition upon which the allegations of medical malpractice are predicated (Massie v Crawford, 78 NY2d 516, 519; McDermott v Torre, 56 NY2d 399, 406)” Young, 91 NY2d at 296). “Thus, essential to the application of the doctrine is that there has been a course of treatment established with respect to the condition that gives rise to the lawsuit” (Nykorchuck v Henriques, 78 NY2d 255, 258-259 [1991]). “In the absence of continuing efforts by a doctor to treat a particular condition, none of the policy reasons underlying the continuous treatment doctrine justify the patient’s delay in bringing suit” (id. at 259).

In this case, plaintiff argues that the annual or semi-annual breast examinations from 1988 to 2000 were part of a continuous treatment involving the monitoring of a fibrocystic breast condition first noticed in the 1988 breast exam.

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Bluebook (online)
17 A.D.3d 175, 796 N.Y.S.2d 36, 2005 N.Y. App. Div. LEXIS 3945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prinz-schwartz-v-levitan-nyappdiv-2005.