White v. Murphy
| Decision Date | 10 January 2002 |
| Citation | 736 N.Y.S.2d 460,290 A.D.2d 704 |
| Parties | ANNE M. WHITE, Respondent,<BR>v.<BR>CHRISTOPHER MURPHY et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Crew III, J.
Plaintiff became a patient at defendant Latham Medical Group in 1989 and began treating with defendant Christopher Murphy in 1993. In March 1995, Murphy conducted a routine physical examination of plaintiff, at which time he noted a "slight fullness" in plaintiff's right breast but determined that the breast tissue was normal. At that time, Murphy also determined to continue plaintiff on the hormone replacement therapy that initially had been prescribed for her in 1992. Following routine mammography screening in 1996, plaintiff was diagnosed with breast cancer, as a result of which she commenced this medical malpractice action in 1999 against defendants alleging that they failed to diagnose her condition in March 1995.
In December 1999, plaintiff moved for leave to amend her complaint to add as defendants East Hudson Community Care Physicians, P.C., which had contracted to provide radiology services for Latham Medical Group, and one of its employees, Robert F. O'Koniewski, who performed mammography screening on plaintiff in March 1995. Supreme Court granted plaintiff's motion and we reversed, holding that the continuous treatment doctrine did not toll the statute of limitations and, thus, the original complaint was untimely (277 AD2d 852, 854). Defendants thereafter moved for leave to amend their answer to assert the defense of statute of limitations and for summary judgment dismissing the complaint. Supreme Court granted defendants leave to amend their answer but denied summary judgment. Defendants now appeal.
Defendants contend that our prior decision regarding the timeliness of this action constitutes the law of the case entitling them to summary judgment and, further, that plaintiff is precluded from attempting to demonstrate that her continued hormone replacement therapy constituted continuous treatment, thereby tolling the statute of limitations. We agree. Here, plaintiff previously had a full and fair opportunity to litigate the issue of continuous treatment as a toll of the statute of limitations, thus barring further litigation of such issue (see, People v Evans, 94 NY2d 499, 502). Indeed, we noted in our prior decision that plaintiff squarely presented the issue to Supreme Court and fully briefed it before us (277 AD2d 852, 854, supra). Plaintiff...
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