Opinion
1269/04.
Decided August 11, 2004.
Massoud Pashkoff, LLP, Aaronson Rappaport Feinstein Deutsch, LLP, McHenry, Horan Lapping, P.C.
Relief Requested
The defendant, "John Doe," M.D., identified as Douglas H. Carras, M.D., (hereinafter referred to as "Carras"), moves for an order of dismissal based on three separate grounds; (1)lack or personal jurisdiction pursuant to CPLR §§ 308(2) and 3211(a)(8); (2) expiration of the statute of limitations pursuant to CPLR § 214-a and § 3211(a)(5); and (3)failure to use reasonable efforts to identify a fictitious party pursuant to CPLR § 3211(a)(5).
The plaintiff, Nancy Harris, (hereinafter referred to as "Harris"), cross-moves for an order(1) pursuant to CPLR § 3025(b) granting plaintiff leave to amend the complaint to include the true name, to wit, Douglas H. Carras, M.D., of the party-defendant previously named herein as "John Doe," M.D.; and (2) in the event that the court finds personal jurisdiction over the aforesaid defendant to be lacking, extending plaintiff's time to effect service of the summons and complaint upon said defendant, pursuant to CPLR § 306-b. Harris submits opposition to the Carras motion. Carras submits opposition to the Harris cross-motion.
Procedural History
The plaintiff, Harris, initiated a medical malpractice action by filing a summons and complaint with the Clerk of the Court. The summons and complaint are stamped filed January 30, 2004. Issue was joined on behalf of the defendant, Carras, by the service of a verified answer on March 1, 2004. Carras asserted affirmative defenses based on statute of limitations and improper service therein.
The plaintiff, Harris, claims that she suffered personal injuries on or about July 19, 2001, while undergoing anesthesia for surgery at North Shore University Hospital at Syosset, (hereinafter referred to as defendant "Hospital"). The complaint alleges, inter alia, that the defendant Hospital was careless and negligent in its failure to properly train and supervise the anesthesiologists employed on behalf of the defendant Hospital. The Harris complaint alleges, inter alia, that Carras failed to properly heed the plaintiff's history of difficult intubation.
The plaintiff submits the affidavit of Nancy Harris, in support of Harris' cross-motion, and in opposition of the defendant, Carras', motion. Harris avers, inter alia, that her vocal cords were injured on July 19, 2001, during anesthesia for surgery performed at the defendant Hospital. Harris claims that immediately after the surgery, she complained to the doctor who performed the surgery, Dr. Alan Geiss, that she experienced hoarseness in her throat and difficulty speaking. Harris states that Dr. Geiss advised her that this problem would resolve itself. Thereafter, Harris saw Dr. Geiss in early August of 2001 for a follow-up treatment. At that time, she reiterated her complaints, and was told again by Dr. Geiss that the situation would resolve itself shortly. Harris avers that when her condition had not yet improved, on or about August 15, 2001, she contacted Dr. Geiss at the defendant Hospital and advised him of the same. Dr. Geiss referred her to a specialist, Dr. Jay S. Youngerman, of Long Island ENT Associates, P.C. Harris contends that the above treatment by the Hospital, its agents, servants and/or employees, all of which was rendered in connection with the July 19, 2001 surgery in which plaintiff was injured, established a "continuous course of treatment" within the meaning of CPLR § 214-a, that extended to at least through August 15, 2001.
Lack of Personal Jurisdiction
The defendant, Carras, argues that personal jurisdiction was not obtained over Carras in accordance with CPLR § 308(2). Carras refers to the affidavit of service of process server, Brian Kleinberg. Mr. Kleinberg avers that he served a copy of the summons and complaint on Joe Doe, M.D. on February 11, 2004, at North Shore University Hospital at Syosset, by serving "Ms. Tatione Bongaeve," a person of suitable age and discretion, a co-worker. Thereafter, on February 12, 2004, Mr. Kleinberg avers he mailed a copy of same to said defendant at defendant's place of business, North Shore University Hospital at Syosset. Carras submits an affidavit by Dr. Fabiano, the Director of the Department of Anesthesiology. Mr. Fabiano avers, inter alia, that when he returned from a one-week vacation on February 13, 2004, on his desk was an inter-office envelope that contained another envelope that contained the pleadings. Mr. Fabiano states that this is the only summons he received. Carras' contention is that since Mr. Fabiano and Carras both attest that they are not familiar with a "Ms. Tatione Bongaeve," and that she is not their co-worker, the attempted service upon a purported co-worker pursuant to CPLR § 308(2) is defective.
Harris argues, in its opposition papers, that the aforementioned process server's affidavit provides that "Ms. Tatione Bongaeve" identified herself as a co-worker, and that Carras interposed an answer less than three weeks thereafter. Therefore, Carras was not prejudiced by the manner in which service of process was affected.
Nevertheless, the aforementioned arguments forwarded by Carras and Harris are now moot, in light of the second attempted service of process by plaintiff. In its opposition, Harris submits a second affidavit of service upon Carras. This affidavit of service indicates that "Dr. Douglas H. Carras s/h/a John Doe M.D." was served on May 4, 2004, at North Shore University Hospital at Syosset, by serving a "Ms. Jane Smith," who identified herself to the process server as a "co-worker" of Carras. On the same date, an additional copy of the summons and complaint was mailed to Carras at the Hospital's address. Accordingly, service was effected on Carras in accordance with CPLR § 308(2). Additionally, as the summons and complaint was filed on January 30, 2004, such service was within plaintiff's 120-day period to effect service, as the 120-day period did not expire until May 19, 2004. (CPLR § 308(b)).
Statute of Limitations
The plaintiff, Carras', contention is that the action against Carras is time-barred. The statute of limitations for medical malpractice actions expires 2½ years after the date of treatment. The anesthesiology services rendered to the Harris were on July 19, 2001. Accordingly, the statute of limitations therefore expires on January 19, 2004. Carras argues that since the summons was not filed until January 30, 2004, the action is untimely.
The defendant, Harris', contention is that the treatment by the defendant Hospital, its agents, servants, and/or employees, all of which was rendered in connection with the July 19, 2001 surgery in which plaintiff was injured, establish a "continuous course of treatment" within the meaning of CPLR § 214-a. Harris contends that the continuous course of treatment extended to at least through August 15, 2001, the follow up visit with Dr. Geiss at the defendant hospital on August 15, 2001, when her condition following the July 19, 2001 surgery did not improve.
"In a medical malpractice action, the cause of action accrues on the date when the alleged malpractice occurred, or upon termination of a series of wrongful acts or omissions ( Daniel J. v. New York City Health and Hospital Corp., 569 NYS2d 396 {77 NY2d 630}; McDermott v. Torre, 452 NYS2d 351 {56 NY2d 399}; Oksman v. City of New York, 271 AD2d 213). Pursuant to the "continuous treatment doctrine," the statute of limitations does not begin to run until "the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint" ( Borgia v. City of New York, 12 NY2d 151). The continuous treatment toll is based on the reasoning that a patient should not be required to interrupt medical treatment by a physician in order to commence a medical malpractice action or serve a notice of claim, which would then create an adversarial relationship which undermines the physician-patient relationship ( Rizk v. Cohen, 73 NY2d 98). The toll of the statute of limitations in a medical malpractice action must be commenced within 2½ years from the date "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 said act, omission or failure" (CPLR § 214-a).
The Second Department has held that the continuous treatment does not apply when there exists a "gap" between treatments which exceeds the applicable Statute of Limitations period. ( Bulger v. Nassau County Medical Center, 266 AD2d 212; Michaels-Dailey v. Shamoian, 245 AD2d 430).
Here, the plaintiff, Harris, alleges that she sustained injuries during anesthesia for surgery performed at the defendant Hospital on July 19, 2001. Harris claims that she immediately complained to Dr. Geiss, the doctor who performed the surgery, that she experienced hoarseness in her throat and difficulty speaking. On August 15, 2001, she again contacted Dr. Geiss at the defendant Hospital, as her condition did not improve. Dr. Geiss then referred her to a specialist. The follow up visit/treatment on August 15, 2001, with Dr. Geiss, approximately less than one month after the surgery, could support a finding that the follow-up was continuous treatment for the same injury or condition "which gave rise to the act, omission or failure complained of" (CPLR § 214-a). The continuous treatment doctrine may be invoked where there was further treatment anticipated by both the physician and patient, as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during the last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past. ( Blaier v. Cramer, 303 AD2d 301, citing Richardson v. Orentreich, 64 NY2d 896). In this case, the August 15, 2001, visit by Harris with Dr. Geiss would be the type of visit manifested by both the physician and patient as a regularly scheduled appointment, as it was a follow-up to the surgery.
As to most of the cases cited by Carras to support its contention that the continuous treatment toll should not be involved, such cases involve prolonged gaps between visits by a plaintiff to the defendant. In Nykorchuck v. Henriques, 78 NY2d 255, the action was commenced more than eight years after the "lump" was first brought to the defendant's attention, and more than four years after the plaintiff's last appointment with the defendant in connection with another medical condition. In Swatrz v. Karlan, 107 AD2d 801, "the interval between treatments exceeds the limitations period" whereby the court stated that [c]ertainly seven years of complete noninvolvement should render time barred all claims as to Dr. Karlan's actions in and prior to 1968." ( Id.) In Pierre-Louis v. Ching-Yuan Hwa, 182 AD2d 55, "[t]he plaintiffs acknowledge that this action was commenced more than 2 ½ years after the last examination or treatment by any of the defendant physicians." In this case, the interval between the surgery and the follow-up visit with Dr. Geiss was less than thirty days.
Untimely Effort To Identify Fictitious Party
Carras argues that plaintiff made little or no effort to identify the anesthesiologist rendering treatment on July 19, 2001. As such, on this ground alone, the complaint should be dismissed. Harris claims that at the time plaintiff retained counsel, Harris had neither any recollection of Dr. Carras' true identity, nor any records which would assist in identifying him. Efforts were made to obtain the records, but the records were simply not forthcoming. Accordingly, plaintiff argues that plaintiff had no alternative but to file a complaint which named Dr. Carras as a fictitious party.
This Court finds that Harris has submitted proof of timely efforts to identify the correct party, ( Fountain v. Ocean View, 266 AD2d 339), and therefore, plaintiff has demonstrated a reasonable effort to identify the fictitious party.
Conclusion
In light of the aforementioned, the defendant's motion to dismiss the plaintiff's complaint for lack of personal jurisdiction, expiration of the statute of limitations, and failure to use reasonable efforts to identify a fictitious party, is denied.
The plaintiff's, cross-motion for leave to amend the complaint to include the true name, to wit, "Douglas H. Carras, M.D., of the party-defendant previously named herein as "John Doe," M.D., is granted.
This constitutes the Decision and Order of this Court.