Manno v. Levi

• Decision Date: 11 July 1983
• Parties: Carolyn MANNO, et al., Appellants, v. Gerard LEVI, M.D., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 219

465 N.Y.S.2d 219

94 A.D.2d 556

Carolyn MANNO, et al., Appellants, v. Gerard LEVI, M.D., et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

July 11, 1983.

Spizz, Gans & Cooper, Mineola (Harvey W. Spizz and Ilene Sherwyn Cooper, Mineola, of counsel), for appellants.

Dewey, Ballantine, Bushby, Palmer & Wood, New York City (Thomas C. Mazza and Sanford N. Berland, New York City, of counsel), for respondent Eli Lilly and Co.

Schiavetti, Begos & Nicholson, New York City (Michael B. Schad, New York City, of counsel), for respondent Gerard Levi, M.D.

Before O'CONNOR, J.P., and BROWN, NIEHOFF and RUBIN, JJ.

BROWN, Justice.

On these appeals we are faced, inter alia, with the application of the doctrine, last reaffirmed by the Court of Appeals in Matter of Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 446 N.Y.S.2d 244, 430 N.E.2d 1297, app. dsmd. 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840, which holds that a cause of action based upon injuries sustained as the result of exposure to a deleterious substance accrues not at the time the injury becomes manifest, but, rather, when the substance is inhaled, ingested or injected. On constraint of that rule, we are compelled to conclude, despite our concern for plaintiff Carolyn Manno's (plaintiff) predicament and the apparent injustice which the doctrine continues to effect in cases such as hers, that plaintiff, who in 1969 took the drug DES (diethylstilbestrol) on the advice of her physician to ensure the successful completion of her pregnancy and, allegedly as a result developed cancer some nine years later, is barred by the Statute of Limitations from bringing this action to recover for her injuries.

The facts are substantially undisputed. In 1967, at the age of 26, plaintiff began to undergo regular gynecological examinations in the office of defendant Dr. Gerard Levi, an obstetrician-gynecologist. In April, 1969, plaintiff became pregnant for the first time. During the course of her pregnancy, she began to experience problems, including severe bleeding, which, according to Dr. Levi, indicated the possibility of a miscarriage. He thereupon prescribed medication which he said would help prevent a miscarriage. She took 100 pills a month for six months until, on November 14, 1969, she gave birth to a daughter, Lynn. Following the birth, she continued her regular annual gynecological examinations and thereafter gave birth to two other daughters, Laura (born July 27, 1973), and Adrienne (born October 14, 1974). During each of these pregnancies she was cared for and treated by Dr. Levi, who also delivered the children. After Adrienne's birth, at plaintiff's request, Dr. Levi performed a tubal ligation so that she would bear no more children. Plaintiff thereafter continued her regular annual gynecological examinations with Dr. Levi.

In November, 1978, plaintiff became concerned about a painful lump in her left breast. Dr. Levi referred her to her family physician. The lump was found to be cancerous and, in December, 1978, plaintiff underwent a modified radical mastectomy of her left breast. After completion of her post-operative care, she returned for her annual visit to Dr. Levi's office. Upon learning of her operation, he advised her to return twice yearly. Early in 1980, on one of her visits, plaintiff asked Dr. Levi whether the drug she had taken in 1969 was DES. He acknowledged that it was. In May, 1980, plaintiff began to develop severe back pain. In June, 1980, she had a positive bone scan, evidencing lesions in her thoracic spine. After 10 radiation treatments, she underwent a bilateral salpingo-oophorectomy (removal of both fallopian tubes and ovaries) for relief. By the fall of 1980, she began to experience new back pain. A bone scan administered in January, 1981 showed new areas of activity and lesions. Plaintiff is at present being treated for an estrogen related metastatic bone disease which has spread through her vertebrae to her right ribs and the right side of her skull.

Plaintiff and her husband, Samuel Manno, thereafter commenced the instant action against Dr. Levi and Eli Lilly & Company, the manufacturer and seller of the DES which she took in 1969. The complaint stated three causes of action against each defendant: (1) on behalf of plaintiff, against defendant Levi, alleging negligence and lack of informed consent; (2) on behalf of Samuel Manno, against defendant Levi alleging medical expenses and loss of services and society; (3) on behalf of plaintiff, against defendant Levi, alleging negligent infliction of emotional distress (from fears that her daughter Lynn would develop reproductive cancer as a result of her prenatal exposure to DES); (4) on behalf of plaintiff, against defendant Eli Lilly and Co., on a theory of strict products liability; (5) on behalf of Samuel Manno, against defendant Eli Lilly & Co., alleging medical expenses and loss of services and society; and (6) on behalf of plaintiff against Eli Lilly & Co., alleging negligent infliction of emotional distress.

Dr. Levi thereupon moved for (a) severance of the action against him from that against Eli Lilly & Co.; (b) dismissal of plaintiffs' three causes of action alleged against him on Statute of Limitation grounds; (c) summary judgment and dismissal of the first two causes of action for lack of merit; and (d) dismissal of the third cause of action for failure to state a cause of action. After service of its answer, Eli Lilly & Co. moved to dismiss the three causes of action against it on Statute of Limitations grounds and to dismiss the sixth cause of action for failure to state a cause of action.

Dr. Levi's motion came before Justice BURSTEIN at Special Term. By order entered September 9, 1981, Justice BURSTEIN granted the motion, stating, inter alia:

"It is clear plaintiff's cause of action accrued in 1969 when she was prescribed and, indeed, used the drug DES. Thornton v Roosevelt Hospital, 47 NY2d 780 [417 N.Y.S.2d 920, 391 N.E.2d 1002] (1979); Schwartz v Heyden Chemical Corp., 12 NY2d 212 [237 N.Y.S.2d 714, 188 N.E.2d 142], remittitur amd. 12 NY2d 1073 [239 N.Y.S.2d 896, 190 N.E.2d 253], cert den, 374 U.S. 808 [83 S.Ct. 1697, 10 L.Ed.2d 1032] (1963). Therefore, the applicable statute of limitations is three years, pursuant to CPLR 214(6) prior to its amendment by L.1975, c. 109, § 6. Szajna v Rand, 75 AD2d 617 (2d Dept 1980). This statute cannot be tolled on any theory of discovery, as chemical compounds (i.e. drugs) are not considered 'foreign objects'. Thornton v. Roosevelt Hospital, supra. Further, the statute of limitations cannot be tolled under the 'continuous treatment doctrine', because the treatment here (the prescription and use of DES) both commenced and terminated during 1969. The continuation of the physician-patient relationship here was not related to the condition experienced by plaintiff in 1969, for which the drug had been prescribed. Thus, there has been no 'continuous treatment'. Charalambakis v City of New York, 46 NY2d 785 [413 N.Y.S.2d 912, 386 N.E.2d 823] (1978); Borgia v City of New York, 12 NY2d 151 [237 N.Y.S.2d 319, 187 N.E.2d 777] (1962). Should the claim of lack of informed consent be deemed a battery, rather than malpractice [see Weinstein-Korn-Miller, 1 NY Civ Prac § 214-(a). 06.], an even shorter period is involved. See CPLR 215(3).

"Finally, plaintiff requests that the doctrine of equitable estoppel should be applied here to prevent defendant from raising the statute of limitations as a defense. However, the amended complaint does not allege the requisite intentional fraud or fraudulent concealment on the part of defendant upon which an application of this doctrine can be based. See Florio v Cook, 48 NY2d 792 [423 N.Y.S.2d 917, 399 N.E.2d 947] (1979); Immediate v St. John's Hospital, 48 NY2d 671 [421 N.Y.S.2d 875, 397 N.E.2d 385] (1979); Simcuski v Saeli, 44 NY2d 442 [406 N.Y.S.2d 259, 377 N.E.2d 713] (1978). The affidavits submitted also did not lend any factual support to such a claim. Accordingly, plaintiff's first cause of action must be dismissed as time barred.

"Even if defendant had notified plaintiff in 1969 or soon thereafter that she had taken DES, plaintiff had no known injury until 1978. Since the statute of limitations commenced to run in 1969, upon the introduction of the drug into her body, [Thornton v Roosevelt Hospital, supra ], an action commenced even in 1978 would have been time barred."

The court also dismissed plaintiff's husband's derivative claim and his cause of action for emotional distress.

Eli Lilly's motion came before Justice McGINITY. In an order entered September 16, 1981, Justice McGINITY granted the motion upon the ground that the decision of Justice BURSTEIN was the law of the case. These consolidated appeals ensued.

Plaintiff contends, first, that her two subsequent pregnancies and her series of annual gynecological examinations constitute a continuous course of treatment sufficient to postpone the running of the Statute of Limitations. ¹ The "continuous treatment" exception was originally set forth in Borgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777, where it was held that the time in which to bring a malpractice action is stayed "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". The Court of Appeals thus limited the doctrine to a continuous course of treatment related to the same original condition or complaint, for the same or related illness or injuries, continuing after the alleged acts of malpractice, but excluded those cases involving the mere continuity of a general physician-patient relationship. The rationale for the exception rests, in part, upon the principle that where a patient is being treated continuously for one condition, he or she should not have to interrupt that treatment in order to sue the...