Williams v. Health Insurance Plan

220 A.D.2d 343, 633 N.Y.S.2d 22, 1995 N.Y. App. Div. LEXIS 10438

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1995
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered May 25, 1994, which, inter alia, denied defendants’ cross motion to dismiss claims of medical malpractice based on treatment rendered more than 21h years prior to the commencement of this action, unanimously affirmed, without costs.

There is no merit to defendant’s contention that the continuous treatment doctrine is inapplicable in cases involving a failure to diagnose cancer (see, Djordjevic v Wickham, 200 AD2d 421; Garda-Alano v Guttman Breast Diagnostic Inst., 188 AD2d 262). The relevant issue in such a case is not whether there has been a diagnosis, but whether the ongoing treatment is related to the cancerous condition that gave rise to the lawsuit (see, McDermott v Torre, 56 NY2d 399, 405, quoting Borgia v City of New York, 12 NY2d 151, 155). Such was clearly the case here. The decedent, in the three years preceding the diagnosis of throat cancer, had received treatment on many occasions for interrelated ear, nose and throat symptoms that indicated throat cancer. She had visited defendants only once during that period for an ailment that was entirely unrelated to those symptoms (compare, Nykorchuck v Henriques, 78 NY2d 255). Concur—Sullivan, J. P., Rosenberger, Ross, Asch and Nardelli, JJ.