Swift v. Colman

• Decision Date: 10 March 1994
• Citation: 608 N.Y.S.2d 717,196 A.D.2d 150
• Parties: William R. SWIFT et al., Appellants, v. Neil D. COLMAN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 717

608 N.Y.S.2d 717

196 A.D.2d 150

William R. SWIFT et al., Appellants, v.Neil D. COLMAN, Respondent.

Supreme Court, Appellate Division Third Department.

March 10, 1994.

Harvey and Harvey, Harvey & Mumford(Jonathan P. Harvey of counsel), Albany, for appellants.

Carter, Conboy, Bardwell, Case, Blackmore & Napierski(Susan DiBella Harvey, of counsel), Albany, for respondent.

Before CARDONA, P.J., and MIKOLL, CREW and WEISS, JJ.

WEISS, Justice.

Appeal from a second amended order and judgment of the Supreme Court(Hughes, J.), entered February 2, 1993 in Albany County, upon a verdict rendered in favor of defendant.

PlaintiffWilliam R. Swift(hereinafter plaintiff) was treated by defendant, an orthopedic surgeon, who performed a surgical procedure on January 30, 1984 to repair a fracture of plaintiff's left femur.Plaintiff remained under defendant's care throughout the year and at an office appointment on December 26, 1984, defendant observed that plaintiff's thigh muscles had not redeveloped to their original size.He suspected that the fracture had not completely knit and ordered a tomogram, which was performed on December 31, 1984.During the first week of January 1985, defendant telephoned plaintiff to inform him of the results of the tomogram and discussed two possible courses of treatment.The options presented by defendant were either electronic bone stimulation or surgery to perform a bone graft.While defendant disputes plaintiff's version of the events and contends he did not see plaintiff again at his office after the telephone conference, it was established during the course of this action that defendant's office personnel contacted plaintiff's insurance carrier on February 5, 1985 to ascertain whether the proposed electronic bone stimulation treatments would be covered by his insurance.Defendant testified that his office personnel completed an insurance form on February 7, 1985 and that he signed it as plaintiff's attending physician.Although defendant testified that he did not consider his treatment of plaintiff's injury completed until "[j]ust when I was handed the lawsuit", plaintiff never returned to defendant for treatment and instead consulted another physician in October 1985 who thereafter performed surgery on plaintiff's left leg.

Plaintiff and his wife commenced this action against defendant on July 24, 1987, alleging negligence and medical malpractice in defendant's treatment and postoperative care.After answering, defendant sought summary judgment dismissing the complaint on the ground that the action was time barred by the Statute of Limitations, contending that more than 2 1/2 years had elapsed between the date defendant last treated plaintiff on December 26, 1984 and the date this suit was commenced.Supreme Court ordered an immediate trial on the sole issue of whether the Statute of Limitations had run and instructed the jury that the sole question presented for their determination was whether defendant had treated plaintiff on February 1, 1985.The jury specifically found that no examination had taken place on February 1, 1985, as alleged and testified to by plaintiff, and it accordingly rendered judgment in favor of defendant.On this appeal, plaintiffs contend that the court erred in its charge concerning the nature of continuing treatment.

Supreme Court charged, in relevant part, that:

The question you must decide is this, did [defendant] render treatment to [plaintiff] on February 1st, 1985.That question will be presented to you in writing.You will answer the question either yes or no.

* * * * * *

In deciding whether [defendant] rendered treatment to [plaintiff] on February 1st, 1985 as [plaintiff] testified, I instruct you that the term treatment includes an examination of the patient.On the other hand, signing a form for an insurance company or processing a check or other form of payment does not constitute treatment.

In medical malpractice actions, the Statute of Limitations may commence to run when a hospital or physician considers treatment of a patient to be completed and the patient is neither instructed nor requested to return for further examination or treatment (McDermott v. Torre, 56 N.Y.2d 399, 405, 452 N.Y.S.2d 351, 437 N.E.2d 1108;see, 1 Weinstein-Korn-Miller, N.Y.Civ.Prac. p 214-a.03).However, when further treatment is explicitly anticipated by both the physician and the patient, the continuous treatment doctrine may effectively toll the Statute of Limitations (Richardson v. Orentreich, 64 N.Y.2d 896, 898-899, 487 N.Y.S.2d 731, 477 N.E.2d 210).Under the doctrine, the time period is tolled until after a patient's last treatment " ' "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" ' " (Massie v. Crawford, 78 N.Y.2d 516, 519, 577 N.Y.S.2d 223, 583 N.E.2d 935, quotingMcDermott v. Torre, supra, 56 N.Y.2d at 405, 452 N.Y.S.2d 351, 437 N.E.2d 1108, quotingBorgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777;cf., Konstantikis v. Kassapidis, 196 A.D.2d 858, 602 N.Y.S.2d 67[1993].A mere interval of greater than 2 1/2 years between visits is not per se dispositive of a claim that the time period has run; instead, the burden shifts to the plaintiff to establish that continuous treatment prevailed triggering the tolling provisions (see, Rizk v. Cohen, 73 N.Y.2d 98, 103, 538 N.Y.S.2d 229, 535 N.E.2d 282).

There are several caveats which serve to countervail the continuous treatment doctrine and which demand consideration when its interposition is sought.The Court of Appeals has emphasized that "essential to the application of the doctrine is that there has been a course of treatment established with respect to the condition that gives rise to the lawsuit"(Nykorchuck v. Henriques, 78 N.Y.2d 255, 258-259, 573 N.Y.S.2d 434, 577 N.E.2d 1026;see, Siegel v. Wank, 183 A.D.2d...