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THE MOTION TO DISMISS ALLEGATIONS OF MEDICAL MALPRACTICE PRIOR TO APRIL 2013 AS TIME-BARRED WAS PROPERLY GRANTED BECAUSE THE CONTINUOUS TREATMENT DOCTRINE DID NOT APPLY; THERE WAS A SUBSTANTIVE DISSENT ARGUING THAT DOCUMENTS SUBMITTED BY THE DEFENDANTS SUPPORTED APPLYING THE CONTINUOUS TREATMENT DOCTRINE AND THE MATTER SHOULD PROCEED TO DISCOVERY (SECOND DEPT).

The Second Department, over an extensive dissent, determined the continuous treatment doctrine did not apply and defendants’ motion to dismiss allegations of medical malpractice occurring before April 9, 2013, was properly granted. The decision is detailed and fact-specific and cannot be fairly summarized here:

Accepting the plaintiff’s expansive view that the mere status of receiving treatment for menopausal symptoms necessarily encompasses all conditions related to menopause and aging, would undermine the sound policy reasons behind the continuous treatment doctrine … . Such a result is contrary to the foundational policy reasons for creating the continuous treatment doctrine, and could result in expanding it to virtually all the medical care a patient receives … . * * *

From the dissent:

The Supreme Court’s determination, endorsed by my colleagues in the majority, that the records submitted by the defendants never reference or address osteoporosis is, in fact, belied by those medical records created and submitted by the defendants, which document, inter alia, that, during the relevant period, the defendants assessed, treated, and monitored the plaintiff’s bone health, despite their failure to order a bone density test.

In sum, the majority’s characterization of certain of the defendants’ own documents fails to afford the plaintiff the favorable view through which the documents should be read … . Moreover, no discovery has been conducted yet, and “[t]he resolution of the continuous treatment issue . . . should abide relevant discovery” … . Weinstein v Gewirtz, 2022 NY Slip Op 04997, Second Dept 8-17-22

Practice Point: Here the pre-discovery motion to dismiss medical malpractice causes of action as time-barred was affirmed. The dissenter argued the defendants’ own documents demonstrated the possible applicability of the continuous treatment doctrine and the matter should proceed to discovery.

 

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