Rizk v. Cohen

• Citation: 538 N.Y.S.2d 229,535 N.E.2d 282,73 N.Y.2d 98
• Parties: , 535 N.E.2d 282, 52 Ed. Law Rep. 190 Samy RIZK et al., Appellants, v. Noel L. COHEN et al., Respondents.
• Decision Date: 16 February 1989
• Court: New York Court of Appeals

Page 229

538 N.Y.S.2d 229

73 N.Y.2d 98, 535 N.E.2d 282, 52 Ed.

Law Rep. 190

Samy RIZK et al., Appellants, v. Noel L. COHEN et al., Respondents.

Court of Appeals of New York.

Feb. 16, 1989.

David B. Turret, Alfred S. Julien and Mary Elizabeth Burns, New York City, for appellants.

Steven I. Brizel, Flushing, for Noel L. Cohen, respondent.

Howard R. Cohen, New York City, for New York University Medical Center, respondent.

OPINION OF THE COURT

TITONE, Judge.

In this appeal, we once again address the doctrine of continuous treatment, which was first established in Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777, and was later codified in CPLR 214-a. ¹ We hold that the requirements of that doctrine are, as a matter of law, not satisfied when there has been mere reliance on a diagnosis, combined with subsequent doctor-initiated contact after an extended period with no physician-patient contact and the absence of objective factors indicating that this period had been expressly contemplated by the parties.

In January 1980 plaintiff Samy Rizk, an anesthesiologist at New York University Medical Center (Medical Center), began to experience ringing in his ears. After some initial testing and consultation with colleagues proved futile, plaintiff was referred in April 1980 to defendant Dr. Noel Cohen, an otolaryngologist, who was also affiliated with the Medical Center. Dr. Cohen sent plaintiff for a speech test, an audiogram, and hot and cold stimulation. When these tests provided inconclusive evidence, Dr. Cohen had plaintiff admitted to the Medical Center. On April 17, 1980 plaintiff underwent a Cat Scan, an IV injection, a contrast injection, a myelogram and an encephalogram. The purpose of these tests was to determine whether plaintiff's symptoms were indicative of an acoustic neuroma.

In evaluating the results of the tests, Dr. Cohen consulted with Dr. Chase, a radiologist employed by defendant Medical Center. Dr. Chase's report following the tests indicated "soft tissue mass completely filling left internal auditory canal, a presumed acoustic neuroma". In addition, the patient's discharge summary, prepared by a hospital resident, noted as a final diagnosis "Rule out left internal auditory canal acoustic neuroma." ²

Although it is clear that the doctors had discussed the possibility of acoustic neuroma between themselves, there is a dispute as to what Dr. Cohen told plaintiff about his condition. Dr. Cohen claimed that he advised plaintiff that the problem was most likely an acoustic neuroma which would have to be monitored, and that plaintiff should return in six months for another Cat Scan. Plaintiff, on the other hand, testified that although they had discussed the possibility of acoustic neuroma prior to the tests, Dr. Cohen specifically told him that all the tests were negative, that the problem looked like a viral infection and that there was nothing to worry about. Plaintiff was discharged from the hospital on April 18, 1980.

There was no further contact between the parties until October 1983, when Dr. Cohen noticed the slides of plaintiff's earlier tests while reviewing some slides for a lecture. Realizing he had not heard from plaintiff in over three years, Dr. Cohen contacted him to ask his permission to use his slides for the lecture, and to see what he had done about his ear condition. After learning that plaintiff had done nothing since April of 1980, Dr. Cohen suggested that plaintiff have another Cat Scan, and a brain stem evoked response test (BSER), a new noninvasive audio metric test which was unavailable in 1980.

The tests revealed an acoustic neuroma which required immediate removal. As a result of the surgery, plaintiff claims he was left with a permanent hearing loss in his left ear, left side tinnitus, balance disturbance, left facial weakness and a loss of sensation in his left side and tongue. On May 2, 1984, plaintiff commenced this malpractice action against Dr. Cohen and the Medical Center, alleging negligence and fraudulent misrepresentation.

Defendant Medical Center moved to dismiss the complaint on the grounds that the action was time-barred and substantially lacking in merit. Defendant Dr. Cohen also moved to dismiss on the ground that the action was time-barred. Plaintiff opposed the motions, arguing that under the continuous treatment exception to the medical malpractice Statute of Limitations the action was not time-barred. He also argued that defendants should be estopped from asserting the Statute of Limitations defense due to their fraudulent concealment.

Supreme Court granted defendants' motions for summary judgment on the ground that the action was time-barred. The court held that plaintiff did not come within the continuous treatment exception because treatment cannot be considered continuous, as a matter of law, when the interval between the malpractice complained of and the last visit exceeds the Statute of Limitations (see, Curcio v. Ippolito, 97 A.D.2d 497, 467 N.Y.S.2d 692, affd. on other grounds 63 N.Y.2d 967, 483 N.Y.S.2d 989, 473 N.E.2d 239; Bennin v. Ramapo Gen. Hosp., 72 A.D.2d 736, 421 N.Y.S.2d 243; but see, Lomber v. Farrow, 91 A.D.2d 725, 457 N.Y.S.2d 638; see also, Renda v. Frazer, 100 Misc.2d 511, 419 N.Y.S.2d 857, affd. 75 A.D.2d 490, 429 N.E.2d 944). Further, the court held that plaintiff had not established the elements of fraudulent concealment and misrepresentation, and thus defendants could not be estopped from raising the Statute of Limitations as a defense. The Appellate Division, First Department, unanimously affirmed, without opinion, 139 A.D.2d 978, 527 N.Y.S.2d 331. We granted leave to appeal, and now affirm but for different reasons from those stated by Supreme Court.

At the outset, since plaintiff was discharged on April 18, 1980, and did not commence this action until May 2, 1984, it is clear that plaintiff's action is time-barred under the applicable Statute of Limitations of 2 1/2 years (CPLR 214-a), unless continuous treatment is found to exist from the date of the original diagnosis through Dr. Cohen's initiation of contact with the plaintiff in October 1983. Although this malpractice action accrued on April 18, 1980, if continuous treatment is found to exist, the Statute of Limitations was tolled during the 3 1/2 years between plaintiff's contact with Dr. Cohen (see, McDermott v. Torre, 56 N.Y.2d 399, 407, 452 N.Y.S.2d 351, 437 N.E.2d 1108), and plaintiff's action would be timely.

Citing our decision in Richardson v. Orentreich, 64 N.Y.2d 896, 487 N.Y.S.2d 731, 477 N.E.2d 210, plaintiff argues there was a continuing relationship of trust and confidence between plaintiff and Dr. Cohen which began with plaintiff's reliance upon the initial diagnosis, and continued through Dr. Cohen's contacting the plaintiff in October 1983 (see, Coyne v. Bersani, 61 N.Y.2d 939, 940, 474 N.Y.S.2d 970, 463 N.E.2d 371; Greene v. Greene, 56 N.Y.2d 86, 94, 451 N.Y.S.2d 46, 436 N.E.2d 496). Plaintiff's reliance on Richardson is misplaced. In Richardson, we held that "when further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future" (id., 64 N.Y.2d at 898-899, 487 N.Y.S.2d 731, 477 N.E.2d 210), continuous treatment did not necessarily come to an end upon the patient's last visit. That there was no contact between doctor and patient during the interim in Richardson was not dispositive because an ongoing physician-patient relationship was contemplated and, accordingly, the presumed continuing trust and confidence which underlies the continuous treatment doctrine was present.

Here, however, accepting plaintiff's version of the facts as we must on this summary judgment motion (Weiss v. Garfield, 21 A.D.2d 156, 249 N.Y.S.2d 458), it is clear that an ongoing relationship, as demonstrated by the existence of scheduled future appointments was not contemplated. Indeed, according to plaintiff's version of the facts, a future appointment would never have been made because he was told, perhaps erroneously, that there was nothing wrong with him. Thus, since neither the "continuing nature of a diagnosis" (McDermott v. Torre, 56 N.Y.2d 399, 406, 452 N.Y.S.2d 351, 437 N.E.2d 1108, supra), nor the "mere continuity of a general physician-patient relationship" (Borgia v. City of New York, 12 N.Y.2d 151, 157, 237 N.Y.S.2d 319, 187 N.E.2d 777, supra), is sufficient to establish continuous treatment, plaintiff's position must stand or fall solely upon Dr. Cohen's October 1983 phone call. In this regard, plaintiff argues that since Dr. Cohen...