This, again, ignores plaintiff's belief that he was under the active treatment of defendant at all times, so long as the Lasik surgery did not result in an appreciable improvement in his vision. In determining whether continuous treatment exists, the focus is on whether the patient believed that further treatment was necessary, and whether he sought such treatment ( see Rizk v. Cohen, 73 N.Y.2d 98, 104, 538 N.Y.S.2d 229, 535 N.E.2d 282 [1989] ). Further, this Court has suggested that a key to a finding of continuous treatment is whether there is “an ongoing relationship of trust and confidence between” the patient and physician (Ramirez v. Friedman, 287 A.D.2d 376, 377, 731 N.Y.S.2d 445 [1st Dept.2001] ).

However, within this context, the decedent's return after a five-year period, during which time no treatment was rendered by Dr. Siegel, cannot be considered timely ( cf. Sinclair v Cahan, 240 AD2d 152, 154 [a 28-month "chasm" between visits]). Nor do the policy reasons underlying the continuous treatment doctrine — that a patient should not be required to interrupt corrective medical treatment by a physician and undermine the continuing trust in the physician-patient relationship in order to ensure the timeliness of a medical malpractice action ( Rizk v Cohen, 73 NY2d 98, 104; see also Young, 91 NY2d at 296)"justify the invocation of the doctrine. Accordingly, we conclude that the decedent's return five years later was "a renewal, rather than a continuation, of the physician-patient relationship" ( Rizk, 73 NY2d at 105; see also Aulita v Chang, 44 AD3d 1206, 1210), and therefore, the continuous treatment doctrine may not be invoked by plaintiff ( McDermott, 56 NY2d at 405; Young, 91 NY2d at 297).

N YCiv.Prac.L. R. § 203 Practice Commentary at 140 (McKinney 1987). See also Rizk v. Cohen, 73 N.Y.2d 98, 104 n. 3, 535 N.E.2d 282, 285 n. 3, 538 N.Y.S.2d 229, 232 n. 3 (1989) (". . . this court has consistently refused to judicially adopt the so-called `discovery' rule . . ."). In Bassile v. Covenant House, ___ Misc.2d ___, 575 N.Y.S.2d 233 (Sup.Ct.N.Y.County), a case which also involved the alleged sexual abuse of a minor by a member of the clergy, Justice Baer conducted a thorough review of the policies underlying the statute of limitations, as well as the reluctance of New York courts towards varying its literal terms.

Even where a "plaintiff pursued no treatment for over 30 months after" the initial, allegedly negligent surgical treatment (id. at 1005), "[i]n determining whether continuous treatment exists, the focus is on whether the patient believed that further treatment was necessary, and whether he [or she] sought such treatment (see Rizk v Cohen, 73 N.Y.2d 98, 104 [1989]). Further, this Court has suggested that a key to a finding of continuous treatment is whether there is 'an ongoing relationship of trust and confidence between' the patient and physician (Ramirez v Friedman, 287 A.D.2d 376, 377 [1st Dept 2001]).

New York courts have expressly declined to adopt a discovery rule for non-fraud state law claims. See Rizk v. Cohen, 73 N.Y.2d 98, 538 N.Y.S.2d 229, 232 n. 3, 535, N.E.2d 282 (1989) (noting that New York "has consistently refused to judicially adopt the so-called 'discovery rule'"). Instead, under New York law for non-fraud claims, a plaintiff must rely on the doctrine of fraudulent concealment: a "defendant may be estopped to plead the Statute of Limitations where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action."

Thus, under the "continuous treatment doctrine," a statute of limitations or a notice of claim period 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 N.Y.2d at 155, supra [emphasis supplied]; CPLR 214-a). The toll of the continuous treatment doctrine was created to enforce the view that a patient should not be required to interrupt corrective medical treatment by a physician and undermine the continuing trust in the physician-patient relationship in order to ensure the timeliness of a medical malpractice action or notice of claim ( Rizk v Cohen, 73 N.Y.2d 98, 104; Borgia v City of New York, 12 N.Y.2d 151, 156, supra). Because a patient who is not aware of the need for further treatment of a condition is not faced with the dilemma that the doctrine is designed to prevent, the primary focus in determining whether the doctrine applies in a given case must remain on the patient ( Allende v New York City Health Hosps. Corp., 90 N.Y.2d 333, 337-338; Rizk v Cohen, 73 N.Y.2d 98, 104, supra).

MacDonald v. Barbarotto, 161 Mich. App. 542, 411 N.W.2d 747, 751 (1987) (applying the medical malpractice statute of limitations to claims of fraud and negligence as plaintiff couched cause of action as "failure to exercise a sufficient degree of professional skill"). See also Turner v. Rust, 385 S.W.2d 175, 177 (Ky.Ct.App. 1964) (applying one-year medical malpractice statute of limitations because no affirmative act of fraud was shown; concealment cannot be assumed); Burris v. Richards, 79 Md. App. 554, 558 A.2d 750, 754 (Spec.App. 1989) (underlying facts of fraud case sounded in negligence; held to be medical malpractice cause of action); Krause v. Farber, 379 N.W.2d 93, 97 (Minn.Ct.App. 1985) (misrepresentation and intentional infliction of emotional distress claims against doctor still fall within two-year statute of limitations); Stacey v. Pantano, 177 Neb. 694, 131 N.W.2d 163, 165 (1964) (allegations of fraud do not alter a medical malpractice case to one of fraud and deceit); Rizk v. Cohen, 73 N.Y.2d 98, 538 N.Y.S.2d 229, 233, 535 N.E.2d 282, 286 (1989) (fraudulent misrepresentation count denied; the same act formed negligence claim). Cf. Nelson v. Gaunt, 125 Cal.App.3d 623, 178 Cal.Rptr. 167 (1981) (suit for fraud and medical malpractice permissible where doctor knowingly and intentionally represented he could inject silicone into a patient's breasts without a permit, without advising her of risks, and against state and federal regulations); Skuffeeda v. St. Vincent Hospital, 77 Or. App. 477, 714 P.2d 235 (1986) (fraud claim against doctor allowed to proceed where doctor reviewed x-rays of a metal screw left in patient's heart and did not disclose it).

Under the continuous treatment doctrine, the time in which to bring a malpractice action is tolled for a particular condition "'"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."'" ( Rizk v. Cohen, 73 N.Y.2d 98, 104, quoting McDermott v. Torre, 56 N.Y.2d 399, 405, quoting Borgia v. City of New York, 12 N.Y.2d 151, 155.) "The purpose of this doctrine is to ameliorate the harshness of a rule which ties accrual of a malpractice action to the date of the offending act [citation omitted], thereby creating a dilemma for the patient, who must choose between silently accepting continued corrective treatment from the offending physician, with the risk that his claim will be time-barred or promptly instituting an action, with the risk that the physician-patient relationship will be destroyed."

See Mozingo v Pitt Co Memorial Hosp, 101 N.C. App. 578; 400 S.E.2d 747 (1991), aff'd 331 N.C. 182; 415 S.E.2d 341 (1992) (no physician-patient relationship between "on-call" obstetrician and maternity patient); Fought v Solce, 821 S.W.2d 218, 219 (Tex Civ App, 1991) (no relationship between on-call specialist and emergency room patient where the defendant declined to come in and examine the plaintiff); Fabian v Matzko, 236 Pa. Super. 267; 344 A.2d 569 (1975) (no relationship where the plaintiff's husband spoke to the doctor on the phone, trying to have the plaintiff admitted to the hospital); Childs v Weis, 440 S.W.2d 104, 107 (Tex Civ App, 1969) (no relationship where a doctor, contacted about an emergency room patient, told an emergency room nurse to have the patient contact her own doctor in another city). In Rizk v Cohen, 73 N.Y.2d 98; 538 N.Y.S.2d 229; 535 N.E.2d 282 (1989), the plaintiff had been a patient of the defendant, an otolaryngologist. The plaintiff consulted the defendant for an ear problem in 1980.

Specifically with respect to medical malpractice, the New York Court of Appeals has made clear that a claim of fraudulent concealment cannot be based on the "alleged improper advice to plaintiff that there was nothing wrong." Rizk v. Cohen, 73 N.Y.2d 98, 105-06, 538 N.Y.S.2d 229, 535 N.E.2d 282 (1989). Instead, Plaintiff must establish that the Defendants, "acting with knowledge of prior malpractice, made subsequent misrepresentations in an attempt to conceal [the] earlier negligence."