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ALTHOUGH DEFENDANT PSYCHIATRIST ALLEGED HE CALLED PLAINTIFF’S DECEDENT TO TELL HER SHE SHOULD SEE ANOTHER PSYCHIATRIST, THE NEXT SCHEDULED APPOINTMENT WITH DEFENDANT WAS NOT CANCELLED; THERE IS A QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED AND RENDERED THE ACTION TIMELY; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined that the medical malpractice causes of action should not have been dismissed as time-barred. Plaintiff’s decedent had seen the defendant psychiatrist for the first time on November 20, 2014 and the next appointment was set up for December 11, 2014. Defendant alleged he called decedent on November 21, 2014 to tell her she should be treated by someone else, but the December 11, 2014 appointment was not cancelled. Decedent committed suicide on November 24, 2014. The action was commenced on May 24, 2017:

Under the continuous treatment doctrine, the period of limitations does not begin to run until the end of the course of treatment if three conditions are met: (1) the patient “continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period”; (2) the course of treatment was “for the same conditions or complaints underlying the plaintiff’s medical malpractice claim”; and (3) the treatment is “continuous” … . To satisfy the requirement that treatment is continuous, further treatment must be explicitly anticipated by both the physician and the patient, as demonstrated by a regularly scheduled appointment for the near future … . * * *

The question here is whether the statute of limitations began to run on November 20, 2014, when the decedent met with the defendant for a medical appointment, or November 24, 2014, when she died. The Supreme Court concluded that the limited interactions between the defendant and the decedent failed to give rise to a continuing trust and confidence between them upon which the court could conclude that the decedent anticipated further treatment. However, since a further appointment was scheduled and was not cancelled—further treatment of some sort was anticipated, or there is at least a triable issue of fact on that issue … . Hillary v Gerstein, 2019 NY Slip Op 08658, Second Dept 12-4-19

 

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