Cooper v. Kaplan

• Citation: 558 N.Y.S.2d 939,163 A.D.2d 215
• Parties: In re Petition for a judgment etc. Sheryl COOPER, Plaintiff-Appellant, v. Dr. Solomon KAPLAN et al., Defendants-Respondents.
• Decision Date: 17 July 1990
• Court: New York Supreme Court Appellate Division

Page 939

558 N.Y.S.2d 939

163 A.D.2d 215

In re Petition for a judgment etc.

Sheryl COOPER, Plaintiff-Appellant, v. Dr. Solomon KAPLAN et al., Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

July 17, 1990.

D.M. Kreitzer, for plaintiff-appellant.

H.R. Cohen, for defendants-respondents.

Before MURPHY, P.J., and SULLIVAN, CARRO, MILONAS and RUBIN, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Helen E. Freedman, J.), entered on or about April 12, 1989, which granted defendant's motion for summary judgment dismissing the complaint, affirmed, without costs.

In this medical malpractice action, plaintiff seeks to avoid the 2 1/2 year Statute of Limitations period (CPLR 214-a), by invoking the doctrine of continuous treatment. See, Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777 (1962). The doctrine of continuous treatment, however, is inapplicable to toll the Statute of Limitations in this case.

Defendant, a physician, prescribed Ortho-Novum 135 birth control pills for plaintiff in or around May, 1985. The only other contact alleged was two telephone calls in August of that year. Plaintiff discontinued her use of the pills on or about October 14, 1985, after discovering a blood clot in her lung. Plaintiff contends that the clot was caused by her use of the medication prescribed by defendant. Plaintiff, however, made no attempt to commence this action, by filing a Summons with Notice with the New York County Clerk, until on or about April 13, 1988.

The continuous treatment doctrine was intended to avoid the harsh consequences of the Statute of Limitations in situations where a patient, in order to meet the limitations period, would be required to "interrupt corrective efforts by serving a summons." Borgia v. City of New York, supra, at 156, 237 N.Y.S.2d 319, 187 N.E.2d 777. The doctrine of continuous treatment was not intended to cover a "mere continuity of a general physician-patient relationship," id. at 157, 237 N.Y.S.2d 319, 187 N.E.2d 777, and should not be applied to the facts of this case, where plaintiff was aware of the injury and of the possible link between the injury and the use of the pills within the limitations period, and the only reason offered for extending the period of limitations is an outstanding prescription for the drug, with no evidence of an appointment for future treatment. Cf., Parrott v. Rand, 126 A.D.2d 621, 511 N.Y.S.2d 57, lv. denied, 69 N.Y.2d 611, 517 N.Y.S.2d 1026, 511 N.E.2d 85, with Richardson v. Orentreich, 97 A.D.2d 9, 468 N.Y.S.2d 336 (1st Dept.1983), aff'd, 64 N.Y.2d 896, 487 N.Y.S.2d 731, 477 N.E.2d 210.

All concur except CARRO and MILONAS, JJ., who dissent in a memorandum by MILONAS, J., as follows:

MILONAS, Justice (dissenting).

In my opinion, the order being appealed herein should be reversed and the complaint reinstated.

Plaintiff commenced this medical malpractice action for damages for personal injuries allegedly sustained by her as a result of medication prescribed by defendant physician, Dr. Solomon Kaplan. In that regard, plaintiff alleges that on May 7, 1985, when she visited Dr. Kaplan for treatment, they discussed birth control at which time she informed defendant that she had previously taken a drug known as Ortho Novum 135 which had caused serious side effects. However, defendant purportedly stated that she should have no problem with this medicine and supplied her with a six month prescription. Thereafter, she contacted Dr. Kaplan by telephone on at least two occasions, the last occasion is conceded by defendant to have been on August 14, 1985. According to plaintiff, the purpose of her calls to him was to complain of pain in her right leg which she believed may have been due to the birth control pills which she was ingesting. Upon advice of Dr. Kaplan, she continued taking the medication. Yet, during a trip to England, plaintiff began to suffer severe pain in her right side along with extreme difficulty in breathing. She was admitted to a hospital where she was diagnosed as having pulmonary embolism in her right lung supposedly attributable to the birth control pills. The date of her injury was October 14, 1985.

The instant lawsuit was commenced on April 13, 1988, one day prior to the expiration of the applicable two and one-half year statute of limitations (CPLR 214-a), by filing a summons with notice upon the New York County Clerk pursuant to CPLR 203(b)(5). Personal service upon defendant was purportedly effected on May 17, 1988. Although defendant disputes the validity of the service, this issue is not before us on appeal since the only matter involved herein is the timeliness of the underlying action. In any event, defendant contends, and the majority agree, that October 14, 1985, the day that plaintiff was afflicted with a blood clot, is not the operative date to compute the beginning of the limitations period. The reason for this is that plaintiff was treated by defendant on May 7, 1985, that she was cognizant all along about the relationship between the use of birth control pills and its possible side effects and that, therefore, having no future scheduled appointment with Dr. Kaplan, she should not receive the benefit of the continuous treatment doctrine.

A cause of action for malpractice in New York State generally accrues at the time of the commission of the alleged malpractice (Davis v. City of New York, 38...