Colonresto v. Good Samaritan Hosp.

• Decision Date: 30 March 1987
• Citation: 128 A.D.2d 825,513 N.Y.S.2d 748
• Parties: Hilda COLONRESTO, et al., Appellants, v. GOOD SAMARITAN HOSPITAL, et al., Defendants, Juan Carlos Pellin, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 748

513 N.Y.S.2d 748

128 A.D.2d 825

Hilda COLONRESTO, et al., Appellants, v. GOOD SAMARITAN HOSPITAL, et al., Defendants Juan Carlos Pellin, Respondent.

Supreme Court, Appellate Division,

Second Department.

March 30, 1987.

Davis & Pollack, New York City (David S. Pollack, of counsel), for appellants.

Martin, Clearwater & Bell, New York City (Peter G. McKiernan, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, NIEHOFF, RUBIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Luciano, J.), dated May 20, 1985, which, upon their motion to dismiss the defendant Pellin's affirmative defense that the action was barred by the Statute of Limitations, awarded summary judgment to the defendant Pellin, on the ground that the action as to him was time barred.

Justice Niehoff has been substituted for the late Justice Gibbons (see, 22 NYCRR 670.2[c] ).

ORDERED that the order is modified, on the law, by deleting the provision thereof which granted summary judgment to the defendant Pellin, and substituting therefor provisions denying him summary judgment and granting the plaintiffs leave to renew their motion to dismiss the defendant Pellin's affirmative defense upon the completion of discovery. As so modified, the order is affirmed, with costs to the plaintiffs.

In this medical malpractice action, the issue which concerns us is whether the defendant Pellin was merely a referring physician who had no further relationship with the patient or with her treating physicians, or whether the physician-patient relationship was maintained during a continuous course of treatment. Unlike our colleagues in the minority, we find that neither the appellants, in their motion to dismiss Pellin's Statute of Limitations defense, nor the defendant Pellin, upon searching the record, established entitlement to summary judgment.

On February 16, 1982, the plaintiff Hilda Colonresto (hereinafter the plaintiff) sought treatment from the defendant Dr. Juan Carlos Pellin (hereinafter the defendant). At that time he made a diagnosis and referred the plaintiff to codefendants Dr. Van Ess and Good Samaritan Hospital for surgery. She was admitted the same day and remained in the hospital until March 5, 1982.

In this action, it is the plaintiff's contention that Dr. Pellin either misdiagnosed her appendicitis, failing to perceive the immediate need for emergency surgery, or failed to communicate the emergency condition to the codefendant Van Ess. The plaintiff's bill of particulars indicates that there was a delay in performing the surgery and that the plaintiff suffered a ruptured appendix prior to surgery.

The plaintiff moved, inter alia, to strike the Statute of Limitations defense from the defendant's answer. Annexed to the moving papers was an affidavit of service indicating that the defendant had been served by the Sheriff on August 28, 1984. Since the summons was not filed with the Sheriff of Suffolk County until August 21, 1984, the issue was whether the defendant Pellin's treatment of the plaintiff ceased as of February 16, 1982, more than two years and six months before August 21, 1984, or on March 5, 1982, less than two years and six months before August 21, 1984.

In his affirmation in support of the motion, the plaintiff's counsel alleged medical malpractice "during a continuous course of treatment beginning on or about February 16, 1982, up to and including March 5, 1982".

In opposition, the defendant's attorney argued that the defendant's treatment ceased on February 16, 1982, and that the plaintiff had only until August 16, 1984, to commence suit. He also stated:

"If the case had undergone the appropriate discovery proceedings pursuant to the CPLR, defendant Pellin would have cross-moved for summary judgment based on the statute of limitations defense. The plaintiffs, however, did not commence this action until three months ago. Therefore, a cross-motion for summary judgment based on the statute of limitations defense would be premature. That part of the plaintiff's instant motion which seeks to strike Dr. Pellin's affirmative defense is similarly premature and, therefore, should be denied".

The affidavit of the defendant simply stated that "he saw the plaintiff, Hilda Colonresto, in his office on February 16, 1982. During that office visit, he made a diagnosis and referred said plaintiff to co-defendants Lester Van Ess, M.D. and Good Samaritan Hospital for a surgical procedure". He claimed that he is not a surgeon and did not "treat" the plaintiff during her stay at Good Samaritan Hospital. He further claimed that although he saw the plaintiff during her stay at the hospital, this was "merely a social visit", that he did not "treat" her at that time, and that "upon information and belief, he did not bill * * * plaintiff for this social visit; nor did he make any notes or write any orders in the Good Samaritan Hospital chart".

In a reply affirmation, the plaintiff's counsel argued that the treatment received by the plaintiff during her hospital admission was "imputable" to the defendant for Statute of Limitations purposes and that the defendant's characterization of his visit to the plaintiff at Good Samaritan Hospital as purely social was "absurd".

By order dated March 15, 1985, Special Term reserved decision on the motion and notified the parties of its intention to treat the motion as one for summary judgment. The court adjourned the case to April 29, 1985. By that date, neither of the parties had submitted any additional proof, and by order dated May 20, 1985, Special Term granted summary judgment to the defendant.

The award of summary judgment to the defendant, upon a record which is absolutely silent as to his relationship with his codefendants, and which claims that he made a "social" visit to his patient in the hospital, was error. An award of summary judgment to either of the parties prior to disclosure would be premature.

"Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a material and triable issue of fact" (Krupp v. Aetna Life & Cas. Co., 103 A.D.2d 252, 261, 479 N.Y.S.2d 992). A defendant moving for summary judgment has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit (GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 498 N.Y.S.2d 786, 489 N.E.2d 755). " 'To obtain summary judgment it is necessary that the movant establish his * * * defense "sufficiently to warrant the court as a matter of law in directing judgment" in his favor (CPLR 3212, subd [b] )' " (Krupp v. Aetna Life & Cas. Co., supra, 103 A.D.2d at p. 261, 479 N.Y.S.2d 992, quoting from Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298).

The record in this case is inadequate to support a determination that either party is entitled to summary judgment. First, there is an issue as to whether the continuous treatment of the codefendant treating physicians can be imputed to the diagnosing physician, the defendant.

At bar, the record is silent as to whether there existed any professional relationship or consultation between the defendant and his codefendants Dr. Van Ess and the hospital, so that the continuous treatment of the plaintiff by the codefendants might be imputed to the defendant (see, Meath v. Mishrick, 68 N.Y.2d 992, 510 N.Y.S.2d 560, 503 N.E.2d 115; McDermott v. Torre, 56 N.Y.2d 399, 452 N.Y.S.2d 351, 437 N.E.2d 1108). Evidence of such a relationship, however, would be peculiarly within the control of the defendant and his codefendants and the plaintiff should have an opportunity to conduct discovery (CPLR 3212[f]; Terranova v. Emil, 20 N.Y.2d 493, 285 N.Y.S.2d 51, 231 N.E.2d 753). Since the action had only been pending for three months at the time the motion was made, it cannot fairly be said that the plaintiff had not properly availed herself of the opportunity to conduct discovery proceedings to procure information in the defendant's control which might shed light on this issue (cf. Meath v. Mishrick, supra ). While it is true that Special Term did adjourn the motion for approximately one month upon announcing its intention to treat it as one for summary judgment to permit the parties to submit additional proof, such direction, absent a contrary indication, should be construed as referring to producing evidence already available to them and not as a mandate to conduct expedited discovery proceedings.

Moreover, in addition to the need for discovery as to the nature of the relationship between the defendant and his codefendants, in light of the defendant's admission that he visited the plaintiff on some unspecified day during the course of her hospital stay, a visit which he characterized as being purely social, a potential factual question exists as to the purpose and nature of that visit, which the plaintiff should be permitted to explore in discovery.

In sum, modification is warranted. It is premature at this prediscovery stage of the action to determine whether the defendant either actually or constructively participated in a continuous course of treatment of the plaintiff, such that summary judgment, either dismissing his Statute of Limitations defense or in his favor, would be appropriate.

BROWN, NIEHOFF and RUBIN, JJ., concur.

EIBER, J., concurs in part and dissents in part and votes to affirm the order appealed from, in the following memorandum in which THOMPSON, J.P., concurs.

This appeal presents an attempt by the plaintiffs to salvage a medical malpractice action against a physician by invoking the continuous treatment doctrine to toll the Statute of Limitations.

The present record discloses...