Watkins v. Fromm

• Decision Date: 06 May 1985
• Parties: Robert L. WATKINS, et al., Respondents, v. Stephen R. FROMM, M.D., et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 768

488 N.Y.S.2d 768

108 A.D.2d 233

Robert L. WATKINS, et al., Respondents, v. Stephen R. FROMM, M.D., et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division Second Department.

May 6, 1985.

Martin, Clearwater & Bell, New York City (Kevin M. Solan, New York City, of counsel), for appellants.

McCoy & Agoglia, P.C., Mineola (Kathleen M. Beckett and Emmet J. Agoglia, Mineola, of counsel), for respondents.

Before TITONE, J.P., and GIBBONS, BROWN and NIEHOFF, JJ.

NIEHOFF, Justice.

This appeal presents the novel question of whether a patient of a medical group, who allegedly has suffered injury by reason of the malpractice of doctors associated with the group, is entitled to the benefit of the "continuous treatment" doctrine as against the doctors alleged to have committed the acts of malpractice where the patient continues to receive treatment for the same illness, injury or condition from other members of the group following the departure from the group of the alleged wrongdoing doctors.

Defendants Fromm and Sarno, the physicians who left the group, moved for summary judgment at Special Term. The basis for their motion was the alleged termination in 1974 of the relationship of each of the movants with the other individual defendants who were former partners of defendant Fromm and former employers of defendant Sarno. It is their contention that upon their termination of their relationship with the group, the Statute of Limitations began to run for any acts of malpractice committed by them, as a consequence of which this action, which was commenced in February of 1980, is time barred. Special Term denied the motion, holding that there is a question of fact to be resolved as to whether a sufficient nexus exists between the moving defendants and the physicians in the group practice who continued to treat plaintiff Robert Watkins after the departure of Drs. Fromm and Sarno. We affirm, but for the reasons stated hereinafter.

We hold that the continuous treatment doctrine is applicable to toll the Statute of Limitations for a malpractice action against physicians alleged to have committed malpractice who have terminated their relationship with a group medical practice if it be established that the plaintiff was considered to be a patient of the group and was treated by the group, as such, and remained under the care of physicians in the group for the same injury, illness or condition after the departure from that practice of the physicians who were primarily, if not solely, responsible for the alleged wrongful acts and omissions. Stated somewhat differently, we conclude that the subsequent treatment by the remaining members of the medical group may be imputed to the departed physicians for Statute of Limitations purposes, provided it is established that the patient was treated as a group patient and the subsequent treatment was for the original condition and/or complications resulting from the original condition. Inasmuch as a question of fact exists at least as to whether the subsequent treatment in this case was for the original condition or complications arising therefrom, the moving defendants are not entitled to summary judgment based on their Statute of Limitations defense. Similarly the presence of such question of fact precludes us from granting summary judgment in favor of the plaintiffs dismissing the defense.

THE FACTS

This medical malpractice action was commenced by the service of a summons and verified complaint on defendant Stephen R. Fromm on February 27, 1980, on defendant James B. Sarno on February 14, 1980, and on all of the other named codefendants on February 11, 1980. Issue was joined by the service of an answer on behalf of the defendants, I. Melbourne Greenberg, Donald I. Mauser, Stephen D. Burstein and their professional corporation on March 10, 1980 and by the defendants-appellants Fromm and Sarno on March 21, 1980.

The record before us reveals that in January, 1973, plaintiff Robert L. Watkins had his first contact with the defendants. At that time he was examined by the defendant Dr. Donald I. Mauser, to whom he had been referred after experiencing constant pain, numbness and tingling in his leg. In 1973, the defendant doctors were practicing in a medical group organized as a partnership, whose members were Dr. Mauser, a neurologist, and Drs. I. Melbourne Greenberg, Stephen D. Burstein, and Stephen R. Fromm, all board certified in the specialty of neurosurgery. Dr. James B. Sarno, also a neurosurgeon, was a salaried employee of the partnership.

Upon his initial examination, Dr. Mauser tentatively concluded that Mr. Watkins' symptoms resulted from either a mass lesion or tumor in the left cerebral hemisphere or cervical spondylosis and he recommended that the patient be hospitalized for further neurological tests. Plaintiff was admitted to South Nassau Communities Hospital on February 4, 1973. During that admission he underwent various diagnostic tests and was examined by other doctors in the defendants' medical group, including Drs. Fromm and Sarno. Statements made by Doctors Greenberg, Fromm and Sarno during the course of their pretrial depositions indicate that Mr. Watkins was considered to be a patient of the entire medical group, rather than of any one of the individual doctors and that it was the practice of the defendant doctors to discuss, as a group, the diagnosis and treatment of all of the patients under their care. The defendants-appellants, Drs. Fromm and Sarno, further admitted that they had participated in discussions concerning the diagnosis and treatment of Mr. Watkins with other defendants in the medical group, including Dr. Mauser, prior to examining him in the hospital in February, 1973.

Based on the neurological work-up done at the hospital and the observations of the defendants, Mr. Watkins was tentatively diagnosed as suffering from a tumor of the left parasigittal region of his brain. On February 14, 1973, Dr. Fromm, assisted by Dr. Sarno, performed a left parietal craniotomy on Mr. Watkins to determine if he was, indeed, suffering from a brain tumor. However, no tumor or vascular abnormality was uncovered and the craniotomy was terminated without any tissue being removed or dissected. Mr. Watkins remained in the hospital under observation and underwent various tests until he was discharged on March 4, 1973. Thereafter, Mr. Watkins complained of complications from the surgery. It appears that the surgery was followed by an infection at the site of the wound, which resulted in his being re-admitted to the hospital on two different occasions during the spring of 1973. During the second readmission, on June 12, 1973, Dr. Sarno, assisted by Dr. Fromm, performed surgery on Mr. Watkins to remove an infected bone flap from the site of the original parietal craniotomy. The plaintiff remained in the hospital until he was discharged on June 26, 1973.

The record shows further that Dr. Fromm never personally treated Mr. Watkins after his discharge from the hospital on June 26, 1973 and that Dr. Sarno last participated in the treatment of Mr. Watkins on January 25, 1974.

On August 17, 1974, Dr. Fromm withdrew from the partnership and he has ceased to be associated with the codefendants in any manner since that date. On December 31, 1974, Dr. Sarno left his salaried position with the partnership and he, too, has not been associated with any of the other defendants since that date. However that may be, Mr. Watkins continued to receive treatment as an out-patient from the remaining members of the medical group and the professional corporation they subsequently formed, from the time of his hospital discharge until approximately July 1978.

Plaintiffs' complaint and bill of particulars disclose that their claims of medical malpractice are essentially premised upon (1) the misdiagnosis of a brain tumor by the defendants and the resulting parietal craniotomy, which it is alleged was not only unnecessary but also negligently performed by Drs. Fromm and Sarno and (2) the failure of defendants to obtain his informed consent for the craniotomy performed by Drs. Fromm and Sarno. Mr. Watkins claims that he has sustained permanent injuries due to the malpractice of the defendants.

THE CONTENTIONS

As noted above, the defendants-appellants argued before Special Term, and assert on appeal, that this action is untimely as against them because the last dates on which they participated in the treatment of Mr. Watkins, and the last dates on which they were associated with the medical group, were more than three years before February, 1980, the date when they were served with plaintiffs' summons and complaint in this action (see CPLR 214 former [6] ).

The plaintiffs, on the other hand, contend that inasmuch as the treatment Mr. Watkins received from the medical group through July, 1978, was for the same condition from which he was suffering when he first consulted members of the group in January, 1973, this action was instituted in a timely fashion because it was started within three years from the date he left the care of the group.

THE LAW

Before taking up a discussion of the applicability of the continuous treatment doctrine to the facts of this case, we note that because defendants' alleged wrongful acts and omissions occurred prior to July 1, 1975, the effective date of the two and one-half year Statute of Limitations for medical malpractice actions (CPLR 214-a, added by L.1975, ch. 109, § 6), the three-year Statute of Limitations contained in CPLR 214 former (6) is applicable to the case at bar (see McDermott v. Torre, 56 N.Y.2d 399, 407, 452 N.Y.S.2d 351, 437 N.E.2d 1108; Barrella v. Richmond Mem. Hosp., 88 A.D.2d 379, 380, 453 N.Y.S.2d 444).

Plaintiffs' action was commenced in February, 1980. As a result, even utilizing the three-year period of limitations this action would be time barred as against the defendants-appellants, unless the period of...