Schrank v. Lederman

• Decision Date: 03 June 2008
• Docket Number: 2007-08026.
• Citation: 860 N.Y.S.2d 556,52 A.D.3d 494,2008 NY Slip Op 05063
• Parties: LINDA SCHRANK, Appellants. v. GILBERT SEYMOUR LEDERMAN et al., Defendants, and STATEN ISLAND UNIVERSITY HOSPITAL, Respondent.
• Court: New York Supreme Court — Appellate Division

52 A.D.3d 494

860 N.Y.S.2d 556

2008 NY Slip Op 05063

LINDA SCHRANK, Appellants. v. GILBERT SEYMOUR LEDERMAN et al., Defendants, and STATEN ISLAND UNIVERSITY HOSPITAL, Respondent.

2007-08026.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided June 3, 2008.

In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Brandveen, J.), dated June 28, 2007, which granted the motion of the defendant Staten Island University Hospital pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against it.

Ordered that the order is modified, on the law and the facts, by deleting the provision thereof granting that branch of the motion of the defendant Staten Island University Hospital which was to dismiss the causes of action to recover damages for medical malpractice and lack of informed consent insofar as asserted against it, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff Linda Schrank (hereinafter the plaintiff) underwent stereotactic radiation treatment for a brain tumor with the defendant Gilbert Seymour Lederman (hereinafter Lederman), the Director of Radiation Oncology at the defendant Staten Island University Hospital (hereinafter SIUH), beginning on August 17, 2002. The last treatment and visit between the plaintiff and Lederman, while Lederman was still employed at SIUH, was on September 10, 2002. Lederman next saw the plaintiff on November 8, 2004 at the defendant Cabrini Medical Center (hereinafter Cabrini), where Lederman had commenced new employment. The plaintiff and her husband commenced the instant action by the filing of a summons and verified complaint on December 12, 2006. SIUH moved to dismiss the complaint pursuant to CPLR 3211 (a) on the ground that the causes of action to recover damages for medical malpractice in failing to properly diagnose the condition, lack of informed consent, and negligent hiring and credentialing, and the derivative loss of consortium and services claim, were interposed beyond the applicable statute of limitations and were not eligible for any toll under the doctrine of continuous treatment. The Supreme Court granted the motion. We modify.

On October 7, 2003 the plaintiff called for and obtained from SIUH a prescription for a CT brain scan. The scan was performed on April 20, 2004. Another physician at SIUH compared the CT brain scan with a scan taken in 2002 and noted, in a report dated May 10, 2004, that the plaintiff's tumor had grown. Lederman spoke with the plaintiff about the enlargement of her tumor on May 13, 2004. SIUH wrote a prescription for a further CT brain scan in October 2004, which was performed on October 22, 2004, and the report of that scan was sent to Lederman at SIUH.

Initially, although SIUH denominated its motion as one to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the Supreme Court was within its authority to treat the motion as one to dismiss for untimeliness pursuant to CPLR 3211 (a) (5), particularly as all parties addressed the statute of limitations and tolling issues in their submissions and no party was prejudiced thereby (see generally Greene v Davidson, 210 AD2d 108, 109 [1994]).

The plaintiffs' "first" and "second" causes of action for medical malpractice and lack of informed consent are timely only if the plaintiffs are entitled to a continuous treatment toll of the 2½ year statute of limitations applicable under CPLR 214-a. The purpose of the continuous treatment doctrine is to avoid the absurdity of requiring a wronged patient to interrupt corrective efforts by serving a summons and complaint upon the treating hospital or physician (see Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 338 [1997]). The Court of Appeals has stated that the continuing trust and confidence underlying the continuous treatment doctrine "does not necessarily come to an end upon a patient's last visit with his or her physician," if further care or monitoring of the condition is anticipated by the physician and patient in the form of regularly-scheduled appointments conforming with periodic appointments that characterized the treatment in the past (see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998]; Richardson v Orentreich, 64 NY2d 896, 898-899 [1985...