Ogle v. State

• Decision Date: 17 November 1988
• Citation: 142 A.D.2d 37,535 N.Y.S.2d 190
• Parties: Carl OGLE, Respondent, v. STATE of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 190

535 N.Y.S.2d 190

142 A.D.2d 37

Carl OGLE, Respondent, v. STATE of New York, Appellant.

Supreme Court, Appellate Division,

Third Department.

Nov. 17, 1988.

Robert Abrams, Atty. Gen. (Leslie B. Neustadt and Peter J. Dooley, of counsel), Albany, for appellant.

Lee S. Michaels, P.C. (John V. Bell, of counsel), Auburn, for respondent.

Before MAHONEY, P.J., and KANE, YESAWICH, HARVEY and MERCURE, JJ.

MERCURE, Justice.

On August 24, 1987, claimant filed a claim for medical malpractice and negligence against the State. The notice of claim indicated that the negligence and malpractice occurred from mid-November 1986 until early March 1987, primarily at Ogdensburg Correctional Facility (hereinafter Ogdensburg) in St. Lawrence County while claimant was an inmate. Specifically, claimant alleges that the State failed to administer follow-up tests for tuberculosis and failed to prescribe antituberculin drugs and that, by reason of the State's delay in providing proper medical care, the disease invaded claimant's spinal cord, rendering him a paraplegic. Claimant asserts that he was ultimately transferred to Upstate Medical Center (hereinafter Upstate) in Onondaga County after first being referred to Good Samaritan Hospital (hereinafter Samaritan) in Jefferson County. During his hospitalization at Upstate, claimant was advised that he had an advanced tubercular lesion of the spine. Following surgery and a period of rehabilitation, he was discharged from Upstate on July 17, 1987 and transferred to Green Haven Correctional Facility in Dutchess County after briefly returning to Ogdensburg.

The Court of Claims denied the State's motion to dismiss the notice of claim as untimely, holding that the continuous treatment doctrine tolled the notice of claim provisions until claimant was released from Upstate. Relying on Kelly v. State of New York, 110 A.D.2d 1062, 488 N.Y.S.2d 919, the court held that "where all of the treating medical personnel are employed by one defendant, as was the case here, the acts of the several employees are taken together as one continuous course of treatment" and, further, that the medical treatment at Upstate should be imputed to the physicians at Ogdensburg. The Court of Claims determined that the notice of claim was timely and, accordingly, denied claimant's motion to file a late claim as unnecessary. ^* This appeal by the State ensued.

As a general rule, an action for medical malpractice accrues on the date when the alleged act or omission occurs even though it may not be discovered until after the Statute of Limitations has run (see, CPLR 214-a; Bleiler v. Bodnar, 65 N.Y.2d 65, 489 N.Y.S.2d 885, 479 N.E.2d 230). An exception where there is continuous treatment, initially delineated by the Court of Appeals in Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777, and now codified in CPLR 214-a, serves to temper the harshness of the rule. The exception also applies to and may toll the 90-day filing requirement for a notice of claim found in Court of Claims Act § 10(3) (Davis v. City of New York, 38 N.Y.2d 257, 379 N.Y.S.2d 721, 342 N.E.2d 516; Borgia v. City of New York, supra; Marabello v. City of New York, 99 A.D.2d 133, 472 N.Y.S.2d 933,appeal dismissed 62 N.Y.2d 942).

Turning to the instant case, we first examine Howard v. State of New York, 96 A.D.2d 656, 466 N.Y.S.2d 506, and Kelly v. State of New York, 110 A.D.2d 1062, 488 N.Y.S.2d 919, supra, relied upon by the State and claimant, respectively. In Howard, this court refused to apply the continuous treatment doctrine even though an inmate was transferred to several different prison facilities and all physicians were employed by the State, reasoning that there was no continuous treatment "because, after [he left Clinton Correctional Facility], claimant was no longer being treated by the doctors who had treated him in Clinton * * * where the alleged malpractice occurred" (Howard v. State of New York, supra, 96 A.D.2d at 657, 466 N.Y.S.2d 506). In Kelly, the Fourth Department applied the continuous treatment doctrine to medical care provided in three different prison facilities on the basis that all of the physicians were employed by the State. Claimant's reliance upon Kelly is misplaced, however, since to the extent that Kelly is in conflict with Howard, we decline to follow it. In our view, the continuous treatment doctrine should not be applied simply on the basis that all of the providers of medical care were employed by the State (see, De Sainz v. City of New York, 101 A.D.2d 746, 475 N.Y.S.2d 67; see also, Ruane v. Niagara Falls Mem. Med. Center, 60 N.Y.2d 908, 470 N.Y.S.2d 576, 458 N.E.2d 1253).

However, we also disagree with the State's conclusion that Howard requires rejection of the continuous treatment doctrine in the instant case as a matter of law. In Howard, the inmate was transferred for administrative rather than medical purposes. Here, claimant was not transferred, but instead hospitalized for the purpose of continuing his medical treatment, and when the treatment was concluded, returned to Ogdensburg. Nevertheless, there must be some relevant relationship between the allegedly negligent physician and the subsequent treating physician before the subsequent...