Richardson v. Orentreich

• Decision Date: 12 February 1985
• Citation: 477 N.E.2d 210,487 N.Y.S.2d 731,64 N.Y.2d 896
• Parties: , 477 N.E.2d 210 Susan RICHARDSON, Respondent, v. Norman ORENTREICH et al., Doing Business as Orentreich Medical Group, et al., Defendants, and Michael J. Kalman, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 731

487 N.Y.S.2d 731

64 N.Y.2d 896, 477 N.E.2d 210

Susan RICHARDSON, Respondent, v. Norman ORENTREICH et al., Doing Business as Orentreich Medical Group, et al., Defendants and Michael J. Kalman, Appellant.

Court of Appeals of New York.

Feb. 12, 1985.

Sean F.X. Dugan and Jeff J. Lawton, New York City, for appellant.

Alfred S. Julien and David B. Turret, New York City, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 97 A.D.2d 9, 468 N.Y.S.2d 336 should be affirmed, with costs, and the question certified answered in the affirmative.

Plaintiff first came under defendant's medical care in January 1973 and received periodic treatments through October 8, 1974, the date of her last visit to his office. At that time, plaintiff was given an appointment for December 4, 1974, which, however, she failed to keep. The appointment was never rescheduled and defendant did not have any further contact with plaintiff.

This action was commenced on November 30, 1977. Plaintiff sought to recover for personal injuries suffered as a result of medical care and treatment administered by defendant during the period from August 1973 through December 1974. Defendant moved for summary judgment on the ground that the action was barred by the three-year Statute of Limitations contained in CPLR 214. ^* In support of the motion, defendant asserted that he "last rendered any medical care, treatment, or diagnosis to this plaintiff on October 8, 1974", and that plaintiff "was given an appointment for December 4, 1974" which she "failed to keep". During deposition, defendant stated that the October 8 appointment was the last time he saw plaintiff and that he never spoke with her thereafter. Consequently, defendant argued that the Statute of Limitations commenced to run on October 8, 1974 and had expired by the time this action was commenced on November 30, 1977, more than three years later.

In opposition to the motion, plaintiff contended that she remained under the continuous care and treatment of defendant after the October 8 visit when she was told to return on December 4, and that she canceled the latter appointment because she was bedridden with illness.

Special Term denied summary judgment on the ground that the papers did not resolve the issue whether defendant's treatment of plaintiff in fact terminated on plaintiff's last visit. The Appellate Division unanimously affirmed, holding that factual questions were presented whether defendant's medical services constituted a continuous course of treatment and whether plaintiff had decided to terminate the physician-patient relationship prior to the canceled appointment. We now hold that defendant's motion for summary judgment was properly denied but that defendant has raised no factual questions whose resolution would sustain the Statute of Limitations defense and which require a trial on this issue.

Under CPLR 214, the three-year Statute of Limitations for medical malpractice does not commence to run until the continuous course of care or treatment has terminated. (Borgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777.) The "continuing trust and confidence" which underlies the "continuous treatment doctrine" (Coyne v. Bersani, 61 N.Y.2d 939, 940, 474 N.Y.S.2d 970, 463 N.E.2d 371) does not necessarily come to an end upon a patient's last personal visit with his or her physician (see, McDermott v. Torre, 56 N.Y.2d 399, 406, 452 N.Y.S.2d 351, 437 N.E.2d 1108), when further treatment is explicitly anticipated by both...