Opinion
101641/2013
08-28-2019
Phyllis CRYSTAL, Plaintiff, v. Iris JORIS, As Executrix of the Estate of Louis Joris, D.M.D., Defendant.
The following numbered 1 through 4 were marked submitted on July 25, 2019
Papers/Numbered
Notice of Motion, dated May 29, 2019
Affirmation of Stephanie M. Berger, Esq. in Support of Motion, with Exhibits, dated May 29, 2019 2
Affirmation of Andrew Small, Esq. in Opposition to Motion, with Exhibits, dated July 18, 2019 3
Reply Affirmation of Stephanie M. Berger, Esq., with Exhibits, dated July 23, 2009 4
Defendant Iris Joris, as Executrix of the Estate of Louis Joris, D.M.D, moves for Summary Judgment seeking to dismiss this Action pursuant to (a) CPLR § 3212 and (b) CPLR §§ 3211(a)(5), 3212 and 214-a. The Motion is granted in part and denied in part as detailed herein.
FACTS
This Action stems from Plaintiff's allegations of dental malpractice against the deceased Defendant Louis Joris, D.M.D. (hereinafter "Defendant" or "Dr. Joris"). Plaintiff filed her Summons and Complaint on or about October 1, 2013. Plaintiff saw Dr. Joris, a general dentist, on November 29, 2010 for an examination and to have five of her teeth bonded. On December 13, 2010, the date of the alleged malpractice, Plaintiff went to Dr. Joris for a prophylaxis (dental cleaning) and for an examination of her upper left mouth, where she was experiencing sensitivity. Plaintiff alleges that during this visit, Dr. Joris cut her tongue and failed to properly care for the wound or take anti-viral precautions. In her deposition Plaintiff testified that prior to the cut, Dr. Joris' phone rang and he went to pick up the phone. According to Plaintiff, Dr. Joris went to answer the phone with his gloves on and still holding the tools he was using to work on her in his hand. Plaintiff stated that after she asked Dr. Joris if he would mind changing his gloves because "he was outside for awhile and it was kind of dusty in his office" (Defendant's Exhibit M, Page 73), "he said, no, it's okay. Don't worry, it's okay." (Defendant's Exhibit M, Page 73). Plaintiff testified that after Dr. Joris lacerated her tongue, "all he did was he got gauze, a piece of gauze, and tried to stop the bleeding by putting pressure on the tip of the tongue." (Defendant's Exhibit M, Page 64).
Plaintiff noted that Dr. Joris did not have a secretary in the office at that time.
Plaintiff testified that a few weeks later, she called Dr. Joris after she began having a reaction with her tongue and was feeling fatigued. In her deposition, Plaintiff explained that she then made an appointment with Dr. Joris for February 2011 to address all of the issues going on in her mouth, including foaming under her frenum. (Defendant's Exhibit M, Page 78). On January 24, 2011, Plaintiff presented to P.V. Albano, M.D. (hereinafter "Dr. Albano") with "extensive foaming, swelling, pain and inflammation of the tongue and mouth" with additional complaints of "severe Malaise and Fatigue." (Exhibit V, Defendant's Affirmation in Support of Motion). In his letter dated May 5, 2015, Dr. Albano explains that Plaintiff was sent for extensive blood work and referred to ENT Helen Kim, M.D. (hereinafter "Dr. Kim") for the problems of her mouth and tongue. While tests for Herpes Simplex Virus were not ordered, Plaintiff's blood test results of January 31, 2011 were positive Epstein-Barr, for which she was given Valacyclovir 500 mg to be taken PO OD.
On or about February 2, 2011, Plaintiff was seen by Helen Kim, M.D. (hereinafter "Dr. Kim"), whose records state that she came with a bump of the tip of her tongue that felt like a burn and existed for more than one month. This corresponds to Plaintiff's testimony, in which she explains that she went to Dr. Kim's office with complaints of problems swallowing, excessive foaming under her tongue, issues with the tip of her tongue, and swelling. (Defendant's Exhibit M, 106). Dr. Kim's records also state that the patient denied teeth grinding. Dr. Kim diagnosed Plaintiff with dysphagia, reflux esophagitis, and thrush, for which Dr. Kim prescribed Nystatin Swish and Swallow (an antifungal agent). On or about February 8, 2011, Plaintiff presented to oral surgeon Sam Straus, D.D.S. (hereinafter "Dr. Straus") and complained of multiple canker sores. Dr. Straus advised Plaintiff to continue with the treatments previously prescribed to her by her previous doctors.
Under the "chief complaint" section of Dr. Kim's record for February 2, 2011, it states "new encounter; tongue mass?" (Exhibit W, Defendant's Affirmation in Support of Motion).
Plaintiff returned to Dr. Kim on or about February 15, 2011. Dr. Kim's records state that "oral surgeon and dentist states they do not think she has thrush, may be a form of herpes. Pt states the tip of her tongue is still hurting her and is more red now." (Exhibit W, Defendant's Affirmation in Support of Motion). Dr. Kim diagnosed Plaintiff with an erythematous ruptured cyst, in addition to dysphagia, reflux esophagitis, and thrush and recommended she finish the Nystatin and start antiviral medications before returning to the office in two to three weeks. (Exhibit W, Defendant's Affirmation in Support of Motion).
According to Plaintiff's testimony, she returned to Dr. Joris in February 2011 to discuss "all the issues in her mouth." (Defendant's Exhibit M, Page 78). Defendant notes that the records maintained by Dr. Joris do not contain an entry for a visit in February 2011. Plaintiff testified that when she returned to Dr. Joris's office in February 2011, there was a pimple forming on the tip of her tongue, foam had accumulated, and her tongue was all red. Plaintiff said that after Dr. Joris examined her, she remembers him saying that "everything's fine." (Defendant's Exhibit M, Page 101). When she asked Dr. Joris why she was still having the problem, Dr. Joris told her that he would contact a professor at New Jersey Dental and Medical and that he would let her know "what theories there are on it." (Defendant's Exhibit M, Page 102).
On or about April 4, 2011, Plaintiff returned to Dr. Joris to tell him that she saw Dr. Kim and that Dr. Kim suggested he make her a bite plate. Plaintiff testified that after Dr. Joris told her the bite plate would cost her approximately $120-130, "I was very upset, you have to be kidding. I said, you cut my tongue, I'm not paying for a bite plate" to which Dr. Joris said "ok." (Defendant's Exhibit M, Pages 121-122). Plaintiff claims because Dr. Joris knew she was very upset, she did not have to pay for the bite plate. In her deposition, Plaintiff stated that she was aware that the bite plate was not related to her herpes outbreak or the sore on her tongue. When questioned about her understanding of the purpose of the bite plate, Plaintiff stated "I think Dr. Kim might have said something about TMJ or grinding or something, I think, I don't remember." (Defendant's Exhibit M, Page 123). Plaintiff also testified that after she told Dr. Joris that she was still experiencing burning on the tip of her tongue, "he said, well maybe a bite plate will help you." (Defendant's Exhibit M, Page 124).
On or about April 11, 2011, Plaintiff presented to dermatologist Keith Jackson, M.D. (hereinafter "Dr. Jackson") for dermatological problems and mentioned something to him about the issues she was experiencing with her tongue during her appointment. (Defendant's Exhibit M, Page 138). Dr. Jackson noted a questionable scar on Plaintiff's tongue, but Plaintiff deferred treatment. Plaintiff also saw Dr. Albano in or about April 2011 regarding a chronic ulcer on her tongue. As evidenced by the bloodwork performed on April 12, 2011, Plaintiff tested positive for Herpes Simplex Virus Type 1.
On or about April 11, 2011, Plaintiff saw Dr. Joris, who inserted the bite plate and adjusted her bite. Plaintiff testified in her deposition that she returned to his office in May because the bite plate wasn't working and because she was still experiencing pain and burning. (Defendant's Exhibit M, Page 126). According to Plaintiff, Dr. Joris told her he was going to consult with some professors at New Jersey Medical and Dental, though he failed to get back to her. Plaintiff notes that as shown by Dr. Joris' chart and the Walgreens prescription, Dr. Joris prescribed her Valacyclovir, an antiviral drug, on May 5, 2011.
On or about June 16, 2011, Plaintiff presented to William Portnoy, M.D. (hereinafter "Dr. Portnoy"), a head and neck surgeon, with complaints of a tongue lesion, throat pain, and oral cavity dryness. Dr. Portnoy made a diagnosis of mild xerostomia (dry mouth), an irritative lesion on her tongue, and mild-laryngeal-pharyngeal reflux. Dr. Portnoy recommended treatment with over the counter medication. Plaintiff returned to Dr. Straus on or about July 12, 2011, complaining of a burning sensation on the tip of her tongue and bilateral border. Dr. Straus advised Plaintiff to take a multivitamin and to have a possible biopsy if the problem persisted.
On or about February 22, 2012, Plaintiff presented to infectious disease physician Jordan Glaser, M.D. (hereinafter "Dr. Glaser"), who ordered bloodwork that returned a positive result for Herpes Simplex Virus Type 1. Dr. Glaser prescribed Valtrex for Plaintiff. Then, Plaintiff sought treatment from Andrew Glyptis, M.D. (hereinafter "Dr. Glyptis"), an infectious disease physician, on or about January 8, 2013. Plaintiff again tested positive for Herpes Simplex Virus Type 1 based on the bloodwork ordered by Dr. Glyptis.
Defendant's Motion for Summary Judgment Pursuant to CPLR § 3211
Summary judgment "is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact." Vega v. Restani Const. Corp. , 18 NY3d 499, 503, 965 N.E.2d 240, 242 (2012) (internal citations omitted) (quoting Alvarez v. Prospect Hosp. , 68 NY2d 320, 324, 501 N.E.2d 572, 574 (1986) ). See Trio Asbestos Removal Corp. v. Gabriel & Sciacca Certified Pub. Accountants, LLP , 164 AD3d 864, 865, 82 N.Y.S.3d 127, 129 (App. Div. 2d Dept., 2018). It is also widely established that on a motion for summary judgment, facts must be viewed in the light most favorable to the moving party. See Vega v. Restani Const. Corp. , 18 NY3d at 503, 965 N.E.2d at 242.
Actions for medical malpractice " ‘require proof that the defendant physician deviated or departed from the accepted community standards of practice, and that such deviation was a proximate cause of the plaintiff's injuries.’ " Dixon v Chang , 163 AD3d 525, 526, 79 N.Y.S.3d 648, 650 (App. Div. 2d Dept., 2018) (quoting Bongiovanni v. Cavagnulo , 138 AD3d 12, 16, 24 N.Y.S.3d 689 (App. Div. 2d Dept., 2016) ). To move for summary judgment, "... a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby." Id. After a defendant has met this standard, the burden shifts to the plaintiff to show that a triable issue of fact exists, only as to the elements that defendant has met the prima facie burden. See id. ; Leigh v. Kyle , 143 AD3d 779, 781, 39 N.Y.S.3d 45, 48 (App. Div. 2d Dept., 2016).
The Court finds that Defendant met its burden by making a prima facie showing that either there was no departure from good and accepted medical practice, or that any departure was not a proximate cause of the patient's injuries. See Kelly v. Rosca, 164 AD3d 888, 83 N.Y.S.3d 317 (App. Div. 2d Dept., 2018). In support of its Motion for Summary Judgment, Defendant submits the affirmations of dentist Ronald Margolies, D.M.D. (hereinafter "Dr. Margolies") and William Mandell, M.D. (hereinafter "Dr. Mandell"). Both Dr. Margolies and Dr. Mandell opine that within a reasonable degree of medical certainty, Dr. Joris did not deviate from the accepted standards of dental practice in rendering care to Plaintiff. According to Dr. Margolies and Dr. Mandell, any alleged acts or omissions on Dr. Joris' part were not the proximate cause of Plaintiff's alleged injuries, did not exacerbate such, and did not deprive Plaintiff of an opportunity for additional/alternative treatment or for a better outcome.
Dr. Margolies states in his affidavit that Dr. Joris appropriately performed the prophylaxis and that even after treating Plaintiff's allegations regarding the tongue laceration as true, such an occurrence is not indicative of malpractice. Dr. Margolies notes that "I have been in practice for 46 years and I have never encountered transmission of the Herpes Virus in a dental office." (Dr. Margolies's Affirmation, Page 9-10). Dr. Margolies also opined that based on Plaintiff's testimony and his knowledge regarding the purpose of a night guard, the fabrication of a night guard was not related to Plaintiff's alleged tongue laceration.
Dr. Margolies also asserts that since Plaintiff was never tested for Herpes Virus before being treated by Dr. Joris, it is impossible to ascertain when she was actually exposed to it.
Dr. Mandell, a board-certified internist and infectious disease physician, states in his affirmation that no evidence exists showing that Plaintiff was uninfected with the Herpes Virus before she was treated by Dr. Joris. According to Dr. Mandell, Plaintiff's complaints were not consistent with the Herpes Virus, particularly those regarding dry mouth, swelling, foaming, and loss of taste. Dr. Mandell opines within a reasonable degree of medical and infectious disease certainty that Dr. Joris' treatment of Plaintiff did not result in the transmission of the Herpes Simplex Virus Type 1.
Explaining that seventy to eighty percent of adults in the United States have Herpes Simplex Virus 1, Dr. Mandell describes how most oral herpes infections are asymptomatic and that the majority of people with Herpes Simplex Virus Type 1 are not aware that they are infected.
In opposition to Defendant's Motion, Plaintiff submits the affirmation of Gary J. Nicoletti, D.M.D. (hereinafter "Dr. Nicoletti"), who states that Dr. Joris violated the standard of care in several ways, including through his alleged failure to keep, maintain, and preserve contemporaneous notes and records of examinations, findings, and discussions with Plaintiff. Dr. Nicoletti found that Dr. Joris also violated the standard of care when he took a phone call during Plaintiff's dental cleaning and failed to change his gloves before continuing to work on her. Dr. Nicoletti also asserts that Dr. Joris violated the standard of care when he lacerated Plaintiff's tongue during the prophylaxis and failed to assess the wound, stop the bleeding or ensure that anti-bacterial and anti-viral precautions were taken.
In his affirmation, Dr. Nicoletti also states that Dr. Joris was negligent in failing to provide Plaintiff with informed consent as to the risks and benefits of prompt and proper wound care.
Dr. Nicoletti responds to the affirmations of Dr. Margolies and Dr. Mandell by asserting that such experts miss the crux of causation in the case. Dr. Nicolletti further explains that since the Herpes Simplex Virus Type 1 infection manifested at the site of the laceration and was concurrent with the laceration, the laceration was a substantial factor in causing Plaintiff to contract Herpes Simplex Virus Type 1. Dr. Nicolleti also states that Dr. Joris was familiar with the fact that he caused Plaintiff to become infected since he prescribed her Valacyclovir on May 5, 2011. Finally, Dr. Nicoletti states that Dr. Joris' malpractice started when he lacerated Plaintiff's tongue and that he was negligent on a continual basis until at least May 5, 2011 because he failed to address Plaintiff's laceration-related symptoms, document those symptoms, and contact other providers regarding Plaintiff's condition.
Dr. Nicoletti opines that Dr. Joris began to see Plaintiff on November 24, 2010 and continued to see her and be responsible for her until May 5, 2011 with respect to the laceration.
The Court finds that based on Dr. Nicoletti's affirmation and other evidence, including Plaintiff's own deposition testimony and affidavit, the Plaintiff has met her burden and shown that a triable issue of fact exists. Therefore, the Court hereby denies Defendant's Motion for Summary Judgment pursuant to CPLR § 3211.
Defendant's Motion to Dismiss Pursuant to CPLR §§ 3211(a)(5), 3212 and 214-a
Under CPLR § 214-a, a medical malpractice action must be commenced within two years and six months of the relevant act or "the last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the act, omission or failure." CPLR § 214-a. A defendant seeking summary judgment dismissing the complaint against him or her as time-barred must make a prima facie showing that the subject treatment ended more than two years and six months prior to the commencement of the action. See Fraumeni v. Oakwood Dental Arts, LLC , 108 AD3d 495, 496, 968 N.Y.S.2d 561, 562 (App. Div. 2d Dept., 2013). After such a showing is made, the burden shifts to the plaintiff to raise a triable issue of fact as to whether the continuous treatment doctrine tolled the limitations period. See Oviedo v. Weinstein , 102 AD3d 844, 846, 958 N.Y.S.2d 467, 468 (App. Div. 2d Dept., 2013).
See also Schwelnus v. Urological Assocs. of L.I., P.C. , 94 AD3d 971, 973, 943 N.Y.S.2d 141, 143 (App. Div. 2d Dept., 2012).
See also Zito v. Jastremski , 58 AD3d 724, 725, 871 N.Y.S.2d 717, 719 (App. Div. 2d Dept., 2009).
As explained by the Court of Appeals in Lohnas v. Luzi , "the operative accrual date for the purposes of determining a claim's statute of limitations is at the end of treatment ‘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.’ " Lohnas v. Luzi , 30 NY3d 752, 755-756, 94 N.E.3d 892, 894, 71 N.Y.S.3d 404, 406 (2018) (quoting Borgia v. City of NY, 12 NY2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777 (1962) ). The Court in Lohnas further explained that the continuous treatment doctrine " ‘seeks to maintain the physician-patient relationship’ in order for the patient to receive the ‘most efficacious medical care[;] ... [i]mplicit in the policy is the recognition that the doctor not only is in a position to identify and correct [the] malpractice, but is best placed to do so." Lohnas v. Luzi , 30 NY3d 752, 756, 94 N.E.3d 892, 894 (2018) (quoting McDermott v. Torre, 56 NY2d 399, 408, 452 N.Y.S.2d 351, 437 N.E.2d 1108 (1982) ). In McDermott v. Torre, the Court of Appeals clearly held that "included within the scope of ‘continuous treatment’ is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment." McDermott v. Torre , 56 NY2d 399, 406, 437 N.E.2d 1108, 1111, 452 N.Y.S.2d 351, 354 (1982).
See Gomez v. Katz , 61 AD3d 108, 111, 874 N.Y.S.2d 161, 164 (App. Div. 2d Dept., 2009).
The Second Department has noted that "the underlying premise of the continuous treatment doctrine is that the doctor-patient relationship is marked by continuous trust and confidence and that the patient should not be put to the disadvantage of questioning the doctor's skill in the midst of treatment, since the commencement of litigation during ongoing treatment necessarily interrupts the course of treatment itself." Gomez v. Katz , 61 AD3d 108, 111, 874 N.Y.S.2d 161, 164—65 (App. Div. 2d Dept., 2009). See Massie v. Crawford , 78 NY2d 516, 519, 583 N.E.2d 935, 937 (1991).
In Gomez v. Katz , the Second Department explained that the continuous treatment doctrine contains three principal elements, the first being that the plaintiff continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period. See Gomez v. Katz , 61 AD3d 108, 111—12, 874 N.Y.S.2d 161, 165 (App. Div. 2d Dept., 2009). The Court explained that " ‘course of treatment’ speaks to affirmative and ongoing conduct by the physician such as surgery, therapy, or the prescription of medications" and that the mere continuation of a general doctor-patient relationship, or continuing efforts to come to a diagnosis, is not sufficient. See id. at 108, 112, 874 N.Y.S.2d at 165. The second principal element is that the course of treatment provided by the doctor is for the same conditions or complaints that underly the Plaintiff's cause of action for medical malpractice. See id. Lastly, the third element is that the physician's treatment is deemed continuous, which is "often found to exist ‘when further treatment is explicitly anticipated by both 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.’ " Id. at 112, 874 N.Y.S.2d at 165—66.
See Nykorchuck v. Henriques , 78 NY2d 255, 259, 577 N.E.2d 1026, 1027, 573 N.Y.S.2d 434, 436 (1991).
See McDermott v. Torre , 56 NY2d 399, 405, 437 N.E.2d 1108, 1110, 452 N.Y.S.2d 351, 353-354 (1982).
See Borgia v. New York , 12 NY2d 151, 157, 187 N.E.2d 777, 779, 237 N.Y.S.2d 319, 322 (1962) ; Couch v. County of Suffolk , 296 AD2d 194, 197, 746 N.Y.S.2d 187, 189-190 (App. Div. 2d Dept., 2002)
Allende v. New York City Health & Hosps. Corp. , 90 NY2d 333, 338, 683 N.E.2d 317, 320, 660 N.Y.S.2d 695, 698 (1997) ; Roca v. Perel , 51 AD3d 757, 760, 859 N.Y.S.2d 203, 207 (App. Div. 2d Dept., 2008).
In the instant Action, Defendant has made a prima facie showing that the subject treatment ended more than two years and six months prior to the commencement of the Action. Defendant argues that Plaintiff's causes of action alleged to have occurred prior to April 1, 2011 must be dismissed as time barred under CPLR § 214-a, as Plaintiff filed her Summons and Complaint on or about October 1, 2013. According to Defendant, the statute of limitations began to run on December 13, 2010, the date upon which Dr. Joris allegedly cut Plaintiff's tongue and caused her to become infected with Herpes Simplex Virus Type 1. Defendant asserts that the continuous treatment doctrine should not be applied to Plaintiff's claims since the visit on December 13, 2010 was for a discreet, intermittent dental cleaning that was not tantamount to a continuous course of treatment. Defendant also argues that Plaintiff's visits to Dr. Joris on April 4, 2011, April 11, 2011 and May 5, 2011 do not serve as a basis for applying the continuous treatment doctrine since such were related to Plaintiff's night guard.
Defendant notes that even assuming that Plaintiff returned to Dr. Joris in February 2011, Plaintiff still filed her Summons and Complaint after the statute of limitations expired.
With regards to the prescription for Valacyclovir, Defendant argues that the prescription history provided by Walgreens Pharmacy indicated that the prescription was written on a pad that had been reported stolen.
Plaintiff argues that her claim was timely made since she was treated by Defendant from November 24, 2010 to May 5, 2011. Plaintiff proffers the Valacyclovir prescription as conclusive evidence that Dr. Joris treated her with relation to the laceration and resulting Herpes Simplex Virus Type 1 until at least May 5, 2011. Plaintiff points to the providers' medical records and her affidavit, in which she states that the night guard was made to try and alleviate the symptoms from the laceration and not because she grinded her teeth. Plaintiff also asserts that Defendant cannot use his lack of proper record-keeping to bootstrap claims that there was not continuous treatment.
The Court finds that Plaintiff has far exceeded her burden under CPLR § 214-a of showing the existence of an issue of fact and has demonstrated that the continuous treatment doctrine tolled the statute of limitations period of December 13, 2010 through May 5, 2011. In line with the elements outlined by the Second Department in Gomez v. Katz, Plaintiff showed that she continued to seek, and in fact obtained, an actual course of treatment from Dr. Joris during the relevant period. Plaintiff testified that she called Dr. Joris a few weeks after the date of the alleged malpractice when she began experiencing symptoms related to her laceration and made an appointment to see him regarding that issue for February 2011. Around the same time that Plaintiff went to Dr. Joris in February 2011, Plaintiff was also seeking treatment for her laceration-related symptoms from Dr. Albano and Dr. Kim. In Dr. Kim's records on February 15, 2011, it states that "oral surgeon and dentist states they do not think that she has thrush, may be a form of herpes." (Exhibit W, Defendant's Affirmation in Support of Motion). As evidenced by Plaintiff's testimony regarding her February 2011 visit, Plaintiff continued to seek treatment for her laceration-related symptoms from Dr. Joris and obtained an actual course of treatment from him.
The Court is not persuaded by Defendant's argument that Plaintiff's visits on April 4, 2011 and April 11, 2011 do not justify applying the continuous treatment since such were related to a night guard that was supposedly recommended to help Plaintiff avoid grinding her teeth. Dr. Kim's records clearly state that Plaintiff denied grinding her teeth and that her chief complaints at each of her visits were her laceration-related symptoms. Plaintiff's testimony regarding her conversation with Dr. Joris at her April 4, 2011 visit indicates that she was willing to try the night guard because of the laceration-related symptoms she was experiencing. The Court finds that since Dr. Joris allegedly told Plaintiff that the bite guard might help her laceration-related symptoms, Plaintiff's visit on April 11, 2011 to pick up the bite guard was also part of the continuous treatment. When Plaintiff returned to Dr. Joris in May 2011 because the bite plate wasn't working, she told Dr. Joris that she was still experiencing pain and burning on her tongue. Plaintiff testified that Dr. Joris again told her he would consult with some professors at New Jersey Medical and Dental, thereby implying that he would be recommending, or at least discussing, a further course of treatment with Plaintiff for her condition.
Plaintiff testified that when she complained that she was still experiencing a burning feeling on the tip of her tongue, Dr. Joris stated "well maybe a bite plate will help you." (Defendant's Exhibit M, Page 124).
Perhaps the most damning piece of evidence of the continuous treatment is Dr. Joris' prescription for Valacyclovir made on May 5, 2011. The Court is not persuaded by Defendant's argument that Plaintiff's May 5, 2011 visit was not related to the lawsuit. The record shows that by prescribing Plaintiff a medication that is used to treat Herpes on May 5, 2011, Dr. Joris treated Plaintiff for her laceration-related symptoms on that date. The Court is also unmoved by Defendant's arguments regarding lack of documentation of Plaintiff's February and May 2011 visits, as this Court refuses to penalize Plaintiff for Defendant's failure to keep accurate records. The Court finds that Plaintiff's testimony and the May 5th prescription for Valacyclovir adequately show that Plaintiff continued to seek and actually obtained a course of treatment from Dr. Joris on May 5, 2011.
The Court also finds that Plaintiff has shown that the course of treatment provided by Dr. Joris, including the fabrication of a bite guard and prescription of Valacyclovir, was for the same conditions and complaints underlying the Plaintiff's cause of action for medical malpractice. As discussed, Dr. Joris provided treatment for Plaintiff's complaints of burning and swelling of the lacerated area of her tongue in February, April and May 2011. The presence of this second principal element under Gomez v. Katz justifies applying the continuous treatment doctrine.
Finally, the Court finds that Dr. Joris' treatment was continuous. Under McDermott, Plaintiff instigated a timely return visit to complain about and seek treatment for a matter related to her initial treatment. Plaintiff contacted Defendant by phone when she began experiencing symptoms related to the laceration and made an appointment with him for February 2011. Plaintiff returned to him in April after seeing Dr. Kim regarding her condition and then again in May, at which time Dr. Joris prescribed a medication for her Herpes. Based on this course of conduct, Dr. Joris' treatment of Plaintiff for her laceration-related complaints was continuous for the period of December 13, 2010 to May 5, 2011.
Based on the elements set forth in Gomez v. Katz and other relevant case law, the Court hereby finds that Plaintiff adequately showed that the continuous treatment doctrine should apply and therefore the statute of limitations was tolled until May 5, 2011. The Court also has determined that the policy reasons discussed by the Court of Appeals in Lohnas and McDermott justify applying the continuous treatment doctrine to this Action. Having applied the continuous treatment doctrine, the Court finds that Plaintiff's Action is timely and denies Defendant's Motion for Summary Judgment seeking dismissal under CPLR § 3211(a)(5).
The Court also finds the cases cited by Defendant as unpersuasive and distinguishable. This is not a case in which Plaintiff relies solely on a continuing physician-patient relationship to justify applying the continuous treatment doctrine. See Young v. New York City Health and Hospitals Corp. , 91 N.Y.2d 291, 670 N.Y.S.2d 169, 693 N.E.2d 196 (1998) ; Chulla v. DiStefano, 242 AD2d 657, 662 N.Y.S.2d 570 (App. Div. 2d Dept., 1997) ; Schreiber v. Zimmer, 17 AD3d 342, 793 N.Y.S.2d 104 (App. Div. 2d Dept., 2005). Furthermore, the Court finds that the subsequent treatments provided in February, April and May 2011 were not unrelated to the same illness, injury or condition underlying Plaintiff's claims of malpractice. See Kasten v. Blaustein, 214 AD3d 539, 625 N.Y.S.2d 44 (App. Div. 2d Dept., 1995). Rather, this Court finds that Dr. Joris provided Plaintiff with continuous treatment for the same condition forming the basis of her medical malpractice cause of action until May 5, 2018.
Defendant's Motion to Dismiss Plaintiff's Claim for Lack of Informed Consent
To establish a cause of action for lack of informed consent in a medical malpractice case, a plaintiff must prove (1) that the physician failed to disclose alternatives and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if they were in the same position, and (3) the lack of informed consent is a proximate cause of the injury. See Zapata v Buitriago , 107 AD3d 977, 979, 969 N.Y.S.2d 79, 82 (App. Div. 2d Dept., 2013). Defendant met its prima facie burden by submitting the affirmation of Dr. Margolies, who opined that informed consent was not required since a dental prophylaxis is a safe procedure with no reasonably foreseeable risks that warrant disclosure. Plaintiff's expert states that Dr. Joris was negligent in failing to provide Plaintiff with informed consent as to the risks and benefits of "prompt and proper wound care." This is not enough to show that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed and that the lack of informed consent is a proximate cause of the injury. Furthermore, Plaintiff fails to respond to Defendant's argument that he did not need informed consent to perform the prophylaxis. Therefore, this cause of action is dismissed.
Accordingly, IT IS HEREBY:
ORDERED, the Court denies Defendant's Motion to dismiss the Action against him under CPLR §§ 3211(a)(5), 3212 and 214-a ;
ORDERED, the Court grants Defendant's Motion to dismiss Plaintiff's cause of action against him for lack of informed consent under Public Health Law § 2805-d(1)(3).
This is the final Decision and Order of this Court.