Ryan v. Kountz

114 A.D.2d 358, 493 N.Y.S.2d 878, 1985 N.Y. App. Div. LEXIS 53043

Opinion

In a medical malpractice action, defendant Kountz appeals (1) from an order of the Supreme Court, Kings County (Bernstein, J.), dated April 26, 1984, which denied her motion to dismiss the complaint on the ground that the Statute of Limitations had expired, and (2) as limited by her brief, from so much of an order of the same court, dated October 31, 1984, as, upon renewal, adhered to its original determination.

Appeal from the order dated April 26, 1984 dismissed. That order was superseded by the order dated October 31, 1984, made upon renewal.

Order dated October 31, 1984 affirmed, insofar as appealed from.

Respondent is awarded one bill of costs.

This action arose out of acts of alleged malpractice occurring in 1973 while plaintiff Irene Ryan was under the care of Dr. Samuel Kountz, now deceased, and defendant Dr. Khalid Butt. Mrs. Ryan continued to be treated by both doctors until Dr. Kountz became ill and lapsed into a coma on May 31, 1977. She was thereafter treated by Dr. Butt until June 1, 1983. This action was commenced in April 1982.

Although Dr. Kountz did not render any medical services after May 31, 1977, plaintiff has raised a question of fact as to whether the two doctors jointly treated Mrs. Ryan as a team prior to May 31, 1977. If Mrs. Ryan was treated by a team of physicians prior to May 31, 1977 and continued to be treated by a member of that team after that date, each member of the team is deemed to have constructively participated in the treatment until its termination (see, Watkins v Fromm, 108 ). Gibbons, J. P., Thompson, Weinstein and Kunzeman, JJ., concur.