JaJoute v. New York City Health and Hospitals Corp.

• Decision Date: 29 September 1997
• Citation: 242 A.D.2d 674,662 N.Y.S.2d 786
• Parties: , 1997 N.Y. Slip Op. 8184 Louis Paul JAJOUTE, et al., Respondents, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 786

662 N.Y.S.2d 786

242 A.D.2d 674, 1997 N.Y. Slip Op. 8184

Louis Paul JAJOUTE, et al., Respondents, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 29, 1997.

Paul A. Crotty, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and Margaret G. King of counsel), for appellant.

Richard D. Kranich, New York City (Meyer, Suozzi, English & Klein, P.C., Robert N. Zausmer, of counsel), for respondents.

Before MILLER, J.P., and RITTER, COPERTINO and THOMPSON, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for medical malpractice, etc., the defendant appeals from an order of the Supreme Court, Queens County (Polizzi, J.), dated September 14, 1995, which, upon granting the plaintiffs' motion for reargument, vacated a prior order of the same court dated July 11, 1995, which had granted the defendant's motion to dismiss the complaint, and thereupon denied the motion.

ORDERED that the order is reversed, on the law, the plaintiffs' motion for reargument is denied, and the order dated July 11, 1995, is reinstated.

On December 23, 1992, the injured plaintiff, Louis Paul Jajoute, after having been diagnosed as having prostate cancer, underwent a bilateral orchiectomy in Queens Hospital Center (hereinafter Queens Hospital). Queens Hospital is owned and operated by the defendant. Jajoute was seen for a post-operative follow-up visit in the out-patient clinic on December 30, 1992, and scheduled to return to the clinic in one month. Jajoute asserted that his last follow-up visit was in February of 1993. On October 6, 1993, Jajoute returned to Queens Hospital complaining of, inter alia, pain during urination. A cystoscopy was planned. However, the record does not indicate that Jajoute returned for the procedure. Rather, in December of 1993 the plaintiffs served the defendant with a notice of claim alleging medical malpractice and lack of informed consent arising from the December 1992 surgery. This action was commenced in June of 1994 seeking damages arising from the alleged medical malpractice. After issue was joined, the defendant moved to dismiss the complaint. The defendant argued that, because the plaintiffs' claims accrued in December 1992, neither the service of the notice of claim nor the commencement of the action was timely (see, General Municipal Law § 50-i; McKinney's Uncons.Laws of N.Y. § 7401[2] [New York City Health and Hospitals Corporation Act § 7401(2); as amended by L.1990, ch. 804] ). The plaintiffs argued that, pursuant to the continuous treatment doctrine, the relevant time limitations had been tolled until a visit to the Queens Hospital on October 6, 1993. On that date, the plaintiffs alleged, Jajoute returned "to complain about and seek treatment for the same urological problem for which [he] initially sought treatment in December, 1992". Thus, the plaintiffs argued, both the service of the notice of claim and the commencement of an action were timely. In the order appealed from, the Supreme Court, inter alia, denied the defendant's motion to dismiss, finding issues of fact as to whether the continuous treatment doctrine was applicable. We now dismiss the complaint.

The continuous treatment doctrine is applicable "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" (Borgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777, aff'd. 15 N.Y.2d 665, 255 N.Y.S.2d 878, 204 N.E.2d 207; see also, McDermott v. Torre, 56 N.Y.2d 399, 452 N.Y.S.2d 351, 437 N.E.2d 1108). "In the absence of continuing efforts by a doctor to treat a particular condition, none of the policy reasons underlying the continuous treatment doctrine justify the patient's delay in bringing suit" (Nykorchuck v. Henriques, 78 N.Y.2d 255, 258-259, 573 N.Y.S.2d 434, 577 N.E.2d 1026; see also, Ganess v. City of New York, 85 N.Y.2d 733, 628 N.Y.S.2d 242, 651 N.E.2d 1261). Here, the plaintiffs have failed to support their conclusory assertion that the October 6, 1993, visit to Queens Hospital concerned the "same problem" for which Jajoute initially sought treatment by any evidentiary facts in admissible form. For example, although it appears that Jajoute did undergo additional surgery in November 1993, the record is completely devoid of any facts concerning such surgery or the condition giving rise to it. The conclusory assertion in the October 6, 1993, hospital record that the plaintiff had "[r]eturn[ed] [with] same problem", does not change this conclusion. There is no evidence in the record on appeal that the hospital record was certified. Thus, the hospital record does not appear to be in admissible form (see, CPLR 4518[c]; People v. Kennedy, 68 N.Y.2d 569, 510 N.Y.S.2d 853, 503 N.E.2d 501). In any event, the author of the hospital record is not identified and is not even alleged to be a person familiar with Jajoute's prior medical history or the December 1992 surgery. Thus, the source of the above-quoted assertion is unclear and could have been Jajoute himself (see, Ginsberg v. North Shore Hosp., 213 A.D.2d 592, 624 N.Y.S.2d 257). Moreover, the plaintiffs do not allege, and there is no evidence, that the preliminary diagnosis set forth in the October 6, 1993, hospital record indicates that the condition for which Jajoute was seeking treatment was the same for which he initially sought treatment. Although the October 6, 1993, hospital record is denoted a "Continuation Record" the relevance of this fact is not explained. We note that hospital records for several other visits by Jajoute to Queens Hospital, which are not alleged and do not appear to be related to the subject surgery, are also denoted "Continuation Records". In sum, the plaintiffs have failed to raise a triable issue of fact that the October 6, 1993, visit to Queens Hospital was part of a continuous course of treatment by Queens Hospital related to the December 1992 surgery (see, Blythe v. City of New York, 119 A.D.2d 615, 501 N.Y.S.2d 69). Thus, this action was not timely and must be dismissed.

In light of this conclusion, we need reach no other issues raised by the defendant.

RITTER, COPERTINO and THOMPSON, JJ., concur.

MILLER, Justice Presiding, dissents and votes to affirm with the following memorandum:

I do not concur in the majority's conclusion that, as a matter of law, the plaintiffs' claims are not subject to a toll of the Statute of Limitations for continuous treatment. Rather, I find that issues of fact exist which preclude an award of summary judgment in the defendant's favor. Therefore, I would affirm the order denying the defendant's motion.

The majority's opinion accurately reflects the fact that there was a gap of approximately 10 months between the injured plaintiff's December 30, 1992, post-operative follow-up, and his October 1993 return visit. The majority, however, omits reference to the fact that the injured plaintiff's October 6, 1993, medical record, which is specifically denominated a "Continuation Record", recites that the injured plaintiff "returns with same problem--dribbling stream, pain in groin with voiding, sense of incomplete emptying", the very problems for which he previously sought surgical treatment. Indeed, as the injured plaintiff testified at his examination before trial, he went back "facing the same problem" and underwent an additional surgery. While there are no medical records in the record on appeal concerning that further operation, the injured plaintiff's...