The Fourth Department, over a dissent, determined plaintiff raised a question of fact whether the 2 1/2 year statute of limitations was tolled by the continuous treatment doctrine, despite gaps in treatment exceeding the statute of limitations:
The determination whether continuous treatment exists “must focus on the patient” … and, “[i]n determining whether plaintiff[] raised an issue of fact concerning the applicability of the continuous treatment doctrine, [her] version of the facts must be accepted as true” … . Based on plaintiff’s version of the facts, there is support in the record for a finding that plaintiff “intended uninterrupted reliance” upon defendant’s observation, directions, concern, and responsibility for overseeing her progress. Notably, during approximately 7 years of treatment with defendant, plaintiff underwent two surgeries, saw no other physician regarding her shoulder, and returned to him for further treatment, i.e., a potential third surgery, but was told that he did not treat or operate on shoulders anymore. Defendant referred plaintiff to another physician in his practice, and plaintiff went to that appointment, but was told that the second physician would not treat her. Furthermore, the fact that plaintiff left the September 5, 2003 appointment with a direction to see defendant “as needed” is not dispositive inasmuch as defendant conceded that “[o]bviously [plaintiff’s] problem is long standing and chronic. She most likely will need further surgery in the future due to her young age and need for revision shoulder replacement vs fusions.” Lohnas v Luzi, 2016 NY Slip Op 04819, 4th Dept 6-17-16
NEGLIGENCE (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)/MEDICAL MALPRACTICE (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)/CONTINUOUS TREATMENT DOCTRINE (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)/STATUTE OF LIMITATIONS (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)