Weinstein v. Gewirtz

• Decision Date: 17 August 2022
• Docket Number: 2019–11270,Index No. 610877/15
• Citation: 208 A.D.3d 717,173 N.Y.S.3d 316
• Parties: Ellen WEINSTEIN, appellant, v. Ilene GEWIRTZ, etc., et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 717
173 N.Y.S.3d 316

Ellen WEINSTEIN, appellant,
v.
Ilene GEWIRTZ, etc., et al., respondents, et al., defendants.

2019–11270
Index No. 610877/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 25, 2022
August 17, 2022

173 N.Y.S.3d 317

Barry Semel–Weinstein (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Jillian Rosen ], of counsel), for appellant.

Dorf & Nelson, LLP, Rye, NY (Anna Schwartz and Heidi Lewis of counsel), for respondents.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, SHERI S. ROMAN, JJ.

DECISION & ORDER

208 A.D.3d 717

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (William G. Ford, J.), dated September 10, 2019. The order granted the motion of the defendants Ilene Gewirtz, Ilene Gewirtz, GYN, P.C., and A Woman's Way Practice of Gynecology pursuant to CPLR 3211(a)(5) to dismiss, as

173 N.Y.S.3d 318

time-barred, so much of the complaint as was based upon alleged acts of medical malpractice occurring prior to April 9, 2013, insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff treated with the defendant Ilene Gewirtz between September 2009 and April 2013. Gewirtz provided the plaintiff with medical treatment for symptoms related to perimenopause and, over time, for symptoms related to menopause syndrome and general gynecological care. This care included annual visits and checkups, and prescriptions for mammograms. Gewirtz also diagnosed the plaintiff with

208 A.D.3d 718

certain menopausal conditions, including atrophic vaginitis, fibroid uterus, and postmenopausal bleeding, and provided specific treatment for these conditions. This treatment included a pelvic ultrasound, which revealed an ovarian cyst. Based on the results of the pelvic ultrasound, on March 7, 2013, Gewirtz performed a dilation and curettage procedure, which included the removal of an endometrial polyp. The surgical pathology report of the tissue recovered during the procedure revealed, among other things, rare benign endocervical cells.

In February 2014, 10 months after the plaintiff's last treatment with Gewirtz, a physician in a different medical practice diagnosed the plaintiff with, inter alia, osteoporosis of the spine and osteopenia in both femurs.

On October 9, 2015, the plaintiff commenced this action, inter alia, to recover damages for medical malpractice against, among others, Gewirtz and the defendants Ilene Gewirtz, GYN, P.C., and A Woman's Way Practice of Gynecology (hereinafter collectively the defendants). The complaint alleges, among other things, that the defendants failed to timely diagnose and treat her osteoporosis. The defendants moved pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, so much of the complaint as was based upon alleged acts of medical malpractice occurring prior to April 9, 2013, insofar as asserted against them. In support of their motion, the defendants submitted some of the plaintiff's medical records dated during her course of treatment with the defendants. The plaintiff opposed the motion. In an order dated September 10, 2019, the Supreme Court granted the defendants’ motion. The plaintiff appeals.

"In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable" ( Schrull v. Weis, 166 A.D.3d 829, 831, 87 N.Y.S.3d 228 [internal quotation marks omitted]; see Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d 788, 789, 51 N.Y.S.3d 183 ).

"A medical malpractice action ‘must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure’ " ( Wright v. Southampton Hosp., 187 A.D.3d 1242, 1244, 131 N.Y.S.3d 216, quoting CPLR 214–a ). " ‘Under the continuous treatment doctrine, the limitations period

208 A.D.3d 719

does not begin to run until the end of the course of treatment if three conditions are met: (1) the patient continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period; (2) the course of

173 N.Y.S.3d 319

treatment was for the same conditions or complaints underlying the plaintiff's medical malpractice claim; and (3) the treatment is continuous’ " ( Wright v. Southampton Hosp., 187 A.D.3d at 1244, 131 N.Y.S.3d 216, quoting Mello v. Long Is. Vitreo–Retinal Consultant, P.C., 172 A.D.3d 849, 850, 99 N.Y.S.3d 414 ).

"The critical inquiry is not whether the defendant failed to make a diagnosis or undertake a course of treatment during the period of limitation, but whether the plaintiff continued to seek treatment for the same or related conditions giving rise to his or her claim of malpractice, during that period" ( Cohen v. Gold, 165 A.D.3d 879, 882, 86 N.Y.S.3d 538 ). "Accordingly, a defendant cannot defeat the application of the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, if the defendant treated the plaintiff continuously over the relevant time period for symptoms that are ultimately traced to that condition" ( id. at 882 ).

Here, the defendants established, prima facie, that so much of the complaint as was based upon alleged acts of medical malpractice occurring prior to April 9, 2013, was time-barred, by demonstrating that this action was commenced more than 2½ years after the alleged acts of malpractice that occurred prior to April 9, 2013 (see CPLR 214–a ; Cohen v. Gold, 165 A.D.3d at 881, 86 N.Y.S.3d 538 ).

In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations was tolled by the continuous treatment doctrine (see Nykorchuck v. Henriques, 78 N.Y.2d 255, 259, 573 N.Y.S.2d 434, 577 N.E.2d 1026 ; Smith v. Cooper, 172 A.D.3d 776, 778, 99 N.Y.S.3d 435 ; Cole v. Richard G. Karanfilian, M.D., P.C., 117 A.D.3d 670, 985 N.Y.S.2d 141 ). The plaintiff sought treatment for perimenopausal and gynecological conditions. None of the three prerequisites necessary to establish a continuous course of treatment for osteoporosis were satisfied. Affording the plaintiff the benefit of all favorable inferences to which she is entitled (see Schrank v. Lederman, 52 A.D.3d 494, 496, 860 N.Y.S.2d 556 ), the record, which includes the defendants’ submission of the medical records documenting the plaintiff's course of treatment with Gewirtz, contains no indication that the plaintiff ever complained of, sought treatment for, or was treated in connection with any symptoms related to osteoporosis, or that Gewirtz ever diagnosed her with osteoporosis (cf. Cohen v. Gold, 165 A.D.3d at 882, 86 N.Y.S.3d 538 ;

208 A.D.3d 720

Javaid v. Jajoo, 127 A.D.3d 1027, 1028, 9 N.Y.S.3d 79 ; Couch v. County of Suffolk, 296 A.D.2d 194, 196, 746 N.Y.S.2d 187 ; Hill v. Manhattan W. Med. Group—H.I.P., 242 A.D.2d 255, 661 N.Y.S.2d 229 ). Since there was no actual course of treatment for osteoporosis or for symptoms related to osteoporosis, there could be no resultant continuous treatment tolling the statute of limitations (see Nykorchuck v. Henriques, 78 N.Y.2d at 259, 573 N.Y.S.2d 434, 577 N.E.2d 1026 ). Instead, the plaintiff complained of and sought treatment for a variety of menopausal conditions. She received diagnoses for these menopausal conditions, for which Gewirtz provided vigorous and substantive treatments, including surgery.

Despite the total lack of evidence in her medical records noting any symptoms of, or a course of treatment for, osteoporosis, the plaintiff, who did not submit any additional medical records documenting her treatment with Gewirtz, contends that Gewirtz's diagnoses of other conditions, including atrophic vaginitis and postmenopausal bleeding, indicated that Gewirtz should have ordered a bone density test

173 N.Y.S.3d 320

for the plaintiff. The plaintiff claims the results of this test would have...