Gist v. Santiago
| Docket Number | Index No. 500810/2020,Motion Sequences. 003,004,005,006 |
| Decision Date | 29 August 2023 |
| Parties | CHEVONNA GIST, Plaintiff, v. ALLAN R. SANTIAGO, M.D., HOPE MEDICAL OF NEW YORK, P.C, INTERFAITH MEDICAL CENTER, BISHOP ORRIS G. WALKER JR. HEALTH CARE CENTER AND NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (KINGS COUNTY HOSPITAL), Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION & ORDER
Recitation as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF #s: 106. 107-127; 131 132-150. 176; 152. 153-162; 165. 166-169. 173-174.
Defendant INTERFAITH MEDICAL CENTER moves this court for an Order pursuant to CPLR §3212, dismissing the plaintiff's complaint with prejudice and directing that summary judgment be entered in its favor (Sequence 003).
Defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION s/h/a NEW YORK CITY HEALTH AND HOSPITALS CORPORATION ("NYCHHC") (KINGS COUNTY HOSPITAL ("KCH") moves this court for an Order pursuant to CPLR §3212, granting partial summary judgment dismissing all claims as against it that predate September 2, 2017 pursuant to CPLR § 3211(a)(5) and Uncon. Laws § 7401(2) as time barred; pursuant to CPLR § 3211(a)(2), Uncon. Laws § 7401(2) and General Municipal Law §§ 50-e, 50-i, and 50-k dismissing all claims herein that pre-date September 2, 2017 as against it for failure to fde a timely Notice of Claim; pursuant to CPLR § 3212(b) granting summary judgment in its favor and dismissing Plaintiffs complaint as against said defendant on the merits (Sequence 004).
Defendants ALLAN R. SANTIAGO, M.D., and HOPE MEDICAL OF NEW YORK, P.C., move this court for an Order pursuant to CPLR §3212 granting them summary judgment and dismissing Plaintiffs complaint on the grounds that the claims made against said defendants lack merit and there are no triable issues of fact for a jury to resolve; and/or alternatively pursuant to CPLR §3211(a)(5) and §214-a, granting partial summary judgement to the moving defendants due to the expiration of the statute of limitations; and severing the action against these defendants (Sequence 005).
Plaintiff submits opposition to the above motions however, Plaintiff does not oppose the motion seeking dismissal of claims relating to the alleged negligent care rendered by ALLAN R. SANTIAGO, M.D., and HOPE MEDICAL OF NEW YORK, P C. Accordingly, summary judgment is granted and all claims relating to ALLAN R. SANTIAGO, M.D., and HOPE MEDICAL OF NEW YORK, P.C. are dismissed, as unopposed (Sequence 005).
Plaintiff moves this court by cross motion for an Order deeming the Notice of Claim previously served on defendant NYCHHC on March 5, 2019, timely served; or, in the alternative, deeming the Notice of Claim previously served on defendant NYCHHC on March 5, 2019, timely served, mine pro tunc, or granting Plaintiff leave to serve a new Notice of Claim, nunc pro tunc (Sequence 006). Defendant NYCHHC submits opposition to Plaintiffs cross motion.
In this case, Plaintiff claims that Defendants failed to timely diagnose Plaintiffs endometriosis causing Plaintiff to undergo a more extensive surgery including insertion of a percutaneous nephrostomy tube and subsequent surgical reinsertion of the ureter, and a colostomy. Defendants argue there are no departures from the standard of care and that an earlier diagnosis would not have changed the treatment Plaintiff received.
Turning first to the issue of whether the Notice of Claim was timely filed and whether the action was timely commenced by the Plaintiff, the court finds that both the statute of limitations and the time to file a Notice of Claim were tolled by the continuous treatment doctrine. Furthermore, as treatment was still ongoing at the time the Notice of Claim dated March 5, 2019 was filed, it was timely filed. Furthermore, as demonstrated below, the statute of limitations did not begin to run until April 19, 2019, and was continuous from February 22, 2016.
Pursuant to General Municipal Law § 50-e(1)(a), a party seeking to sue a public corporation must serve a Notice of Claim on the prospective defendant within 90 days after the claim arises. See Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 460 [2016], However, under the continuous treatment doctrine, the time to fde a Notice of Claim upon a municipal entity does not begin until the end of the course of treatment. Baltzer v. Westchester Medical Center, 209 A.D.3d 815, 816 [2d Dept. 2022] [internal citation omitted]. Additionally, "[a]n action against a public corporation to recover damages for medical malpractice or conscious pain and suffering must be commenced within one year and 90 days after the accrual of the cause of action [internal citations omitted]." Watts v. City of New York, 186 A.D.3d 1574, 1576 [2d Dept. 2020], The continuous treatment doctrine may toll both the time to fde the Notice of Claim and the statute of limitations so long as '"(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 plaintiffs medical malpractice claim; and (3) the treatment is continuous.'" Weinstein v. Gewirtz, 208 A.D.3d 717, 719 [2d Dept. 2022][intemal citations omitted].
In the instant matter, Defendant NYCHHC argues that the continuous treatment doctrine does not apply to the treatment the plaintiff received in this case. Specifically, Defendant correctly argues that the continuous treatment doctrine is meant to avoid putting the patient in the position of choosing between commencing a lawsuit and thus destroying the relationship of trust and confidence between the patient and the healthcare provider, or foregoing the lawsuit or claim in order to continue treatment with a provider knowledgeable about the patient's condition. See Rizk v. Cohen, 73 N.Y.2d 98, 104 [1989]; see also Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291, 296 [1998]]. Defendant further argues that all of Plaintiff s visits to the KCH emergency department and the KCH GYN clinic prior to September 2, 2017 were discrete and sporadic and that continuous treatment is only applicable "when further treatment is explicitly anticipated by both the physician and the patient as manifested in the form of regularly scheduled appointments for the near future, agreed upon during that last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past". Richardson v. Orentreich, 64 N.Y.2d 896, 898-899 [1985]; Cox v. Kingsboro Medical Group, 88 N.Y.2d 904, 906 [1996], In opposition, Plaintiff argues that Ms. Gist has "repeatedly made complaints regarding the same or similar symptoms, [and] it is not determinative that the plaintiff also sought relief for those complaints from other providers." Plaintiff further argues that continuous treatment is applicable where, as here, she returned to KCH and "continued to complain of the same or related symptoms". See Glasby v. Fogler, 303 A.D.2d 718 [2d Dept. 2003][citing Klotz v. Rabinowitz, 252 A.D.2d 542. 543 [2d Dept. 1998]["The continuous treatment doctrine will be applied where the patient initiates a timely visit to complain about and seek treatment for a problem related to the initial treatment."].
According to Plaintiffs expert's timeline of treatment, to which the Defendant NYCHHC does not object, Plaintiff first visited the emergency room at KCH, owned and operated by NYCHHC, on February 22, 2016, with complaints of rectal pain for two weeks, abdominal pain for two days, headache and abdominal tenderness. On that date, she was told to follow up with the GYN clinic within three days. Three days later, on February 25, 2016, Plaintiff presented to the KCH GYN clinic, as instructed, and was diagnosed with "Leiomyoma [fibroid] of uterus, unspecified." On March 28, 2016, just over one month later, Plaintiff again presented to the KCH GYN Clinic with complaints of right sided abdominal pain with menses and was diagnosed with Leiomyoma of uterus, unspecified Dysmenorrhea, unspecified and abnormal uterine and vaginal bleeding. A VABRA evaluation, which Plaintiffs expert describes as a biopsy of endometrial tissue, was scheduled. The following month, on April 12, 2016, Plaintiff presented to the KCH emergency room with complaints of severe radiating lower abdominal pain for one day and a CT scan and a physical exam revealed palpable fibroids. Plaintiff was discharged with pain medication.
Two months later, on June 17, 2016, Plaintiff presented to KCH and the VABRA evaluation was conducted. On October 29, 2016 four months after the previous visit, Plaintiff presented to KCH emergency room with complaints of worsening severe abdominal pain, nonbloody emesis, and decreased urination with dysuria, and a "[p]elvic sonogram show[ed] simple right ovarian cyst and large anterior fibroid." The patient's pain was deemed secondary to the fibroid and constipation. The patient was discharged with pain medications and Miralax. A mere four days later, on November 2, 2016, Plaintiff again presented to KCH emergency room with complaints of chronic constipation for two weeks and was given an enema, stool softeners, and a laxative. Plaintiff was discharged with a laxative. Later that month, on November 20, 2016, Plaintiff presented to the KCH emergency room with complaints of lower abdominal pain, straining to have bowel movements and blood coming out of her rectum. KCH noted the patient had hemorrhoids, lab work was recommended, and Plaintiff was referred to KCH GYN clinic for management. Two days later, on November 22, 2016, Plaintiff presented to the KCH GYN...
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