Ganapolskaya v. v. I.P. Medical Associates

• Decision Date: 27 June 1996
• Citation: 644 N.Y.S.2d 735,221 A.D.2d 59
• Parties: Irina GANAPOLSKAYA, Plaintiff-Appellant, v. V.I.P. MEDICAL ASSOCIATES, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 735

644 N.Y.S.2d 735

221 A.D.2d 59

Irina GANAPOLSKAYA, Plaintiff-Appellant, v. V.I.P. MEDICAL ASSOCIATES, et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

June 27, 1996.

Betty Brutman, of counsel, New York City (Wolf & Fuhrman, attorneys) for defendant-respondent V.I.P. Medical Associates.

Elliott J. Zucker, of counsel, New York City (Gordon & Silber, P.C., attorneys) for defendant-respondent Munoz.

Before ROSENBERGER, J.P., and ELLERIN, RUBIN, KUPFERMAN and TOM, JJ.

TOM, Justice.

The issue presented on this appeal concerns whether the 2 1/2 year limitations period for a medical malpractice action (CPLR 214-a) is tolled while plaintiff receives emergency treatment in a hospital due to complications arising out of an abortion procedure performed by another doctor in another medical facility.

Plaintiff Irina Ganapolskaya had been diagnosed with an ectopic (tubal) pregnancy in July 1990 and on July 24, 1990, she became a patient at defendant V.I.P. Medical Associates ("V.I.P.") for a therapeutic abortion, which was performed by co-defendant Dr. A. Munoz. Dr. Munoz attempted a suction and curettage abortion, but subsequent laboratory analysis failed to reveal any fetal parts. As a result, V.I.P. sent letters to plaintiff, dated August 8 and August 24, 1990, stating that plaintiff should contact V.I.P. as soon as possible concerning the procedure and that it was necessary that she be re-examined posthaste.

On August 28, 1990, plaintiff returned to V.I.P., where a sonogram confirmed plaintiff's continued pregnancy. On August 31, 1990, plaintiff underwent a second abortion, which procedure commenced at approximately 2:00 PM. Plaintiff maintains that by 3:30 PM, she was experiencing vaginal bleeding and began to cramp; and that by 3:45 PM, she had abdominal pain, the vaginal bleeding persisted and her blood pressure began to drop. Plaintiff avers that she passed out at approximately 4:00 PM, at which time V.I.P. personnel placed her in a bed and Dr. Munoz directed that an ambulance be summoned. At 5:00 PM, nurses at V.I.P. recorded plaintiff's complaints of continued abdominal pain and vaginal bleeding and that her blood pressure had dropped to 90/50.

An ambulance arrived at V.I.P. at approximately 5:30 PM and subsequently transported plaintiff to Beth Israel Medical Center ("Beth Israel"). Dr. Munoz did not accompany plaintiff in the ambulance, but the Emergency Medical Service ("EMS") was given her chart, a progress report, a copy of the operating room report, and was informed of possible internal bleeding. Plaintiff thereafter underwent an emergency laparotomy at Beth Israel to determine whether she had a perforated uterus caused by the abortion procedure. The next day, September 1, 1990, surgeons at Beth Israel operated on plaintiff in a more extensive manner, and performed a left cornual resection, aspiration of the right parovarian cyst, and a diagnostic dilation and curettage ("D & C") to remove any excess blood or tissue from plaintiff's uterus. Plaintiff remained hospitalized until her discharge on September 7, 1990.

Plaintiff commenced the underlying medical malpractice action against Dr. Munoz and V.I.P. by the service of a summons and verified complaint alleging, inter alia, that defendants' negligence caused her to suffer a perforated uterus and other permanent and serious injuries. Dr. Munoz subsequently moved, and V.I.P. cross-moved, to dismiss the complaint on the grounds that plaintiff had not commenced the action within the 2 1/2 year time limitation set forth in CPLR 214-a. Defendants argue that plaintiff's treatment terminated when she left V.I.P. and was no longer being treated by Dr. Munoz. Plaintiff contends that there was "continuing treatment" extending the limitations period to include the period in which she received emergency treatment in the hospital, and that her claim is not time-barred.

After oral argument was heard, the IAS court granted the motion and cross-motion and, reluctantly, dismissed the complaint, which had been served four days beyond the limitations period if such period is measured from plaintiff's removal, by ambulance, from V.I.P. Plaintiff appeals and we now reverse.

Generally, a medical malpractice action must be commenced within 2 1/2 years of the wrongful act complained of. CPLR 214-a provides, in pertinent part:

An action for medical ... malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure.... (emphasis added).

It is undisputed that the alleged negligent treatment by Dr. Munoz occurred on August 31, 1990, and that plaintiff did not commence this action until on or about March 4, 1993. Based on these dates, plaintiff's malpractice action was commenced beyond 2 1/2 years and would be time-barred. If, however, continuous treatment is found to exist for the period plaintiff was in the hospital, the statute is tolled and the instant action would be timely.

The doctrine of continuous treatment, embodied in CPLR 214-a, was first established in Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777, and provides that the 2 1/2 year period does not begin to run until the end of the course of treatment "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint" (id. at 155, 237...