Opinion
Index No. 809580/2019
07-06-2022
Anthony D'AURIA and Lynn D'Auria, Plaintiffs, v. David R. DOUGHERTY, D.O. Robert R. Conti, M.D. Nagaraja Sridhar, M.D. John Griswold, M.D. and Buffalo Medical Group, P.C., Defendants.
Lipsitz Green Scime Cambria LLP (Laraine Kelley of counsel) for plaintiffs. Connors LLP (John T. Loss of counsel) for David R. Dougherty, D.O., defendant. Ricotta, Mattrey, Callocchia, Markel & Cassert (Colleen Mattrey of counsel) for Robert R. Conti, M.D., defendant.
Lipsitz Green Scime Cambria LLP (Laraine Kelley of counsel) for plaintiffs.
Connors LLP (John T. Loss of counsel) for David R. Dougherty, D.O., defendant.
Ricotta, Mattrey, Callocchia, Markel & Cassert (Colleen Mattrey of counsel) for Robert R. Conti, M.D., defendant.
John B. Licata, J.
Defendant has brought a motion seeking summary judgment based on the affirmative defense of the Statute of Limitations that plaintiff untimely commenced this action. Plaintiff opposes the motion and asserts that the continuous treatment doctrine exception to the statute of limitations applies to this action, making it timely commenced. For the reasons that follow, defendant's motion is denied.
Defendant did plead the affirmative defense in their answer and as such has the burden to establish that plaintiff has commenced this action beyond the thirty-month statute of limitations applicable to medical malpractice actions under CPLR § 214-a. All parties agree that plaintiff's allegations of negligence against defendant Robert R. Conti, M.D., relate to radiological services provided on May 7, 2015, and that this action was commenced by filing the summons with complaint on August 1, 2019, more than thirty-months after the alleged malpractice. It follows that defendant has met their burden to establish that the action was commenced after the statute of limitations expired. The burden then shifted to plaintiff to establish an exception to the applicable defense.
Plaintiff claims the continuous treatment exception applies to this action. Continuous treatment includes treatment contemplated and undertaken by a medical group or practice if they continuously treated plaintiff for the underlying condition during the time period at issue, precluding them from asserting the statute of limitations defense. (See Dolce v. Powalski , 13 A.D.3d 1200, 1201, 787 N.Y.S.2d 595 [4th Dept. 2004] ).
In ( Watkins v. Fromm , 108 A.D.2d 233, 488 N.Y.S.2d 768 [2d Dept. 1985] ) the Appellate Division, Second Department held that a patient who was receiving ongoing monitoring from an entire group of physicians met the requirements of the continuous treatment exception to the statute of limitations. The patient had maintained the relationship to the physician group and the shared understanding that the group would monitor the patient's condition established the continuous treatment. "The doctors who banded together to form a group practice selected the manner in which they would practice medicine. [Plaintiff] did not make that decision and was not privy to their internal arrangement" ( Watkins v. Fromm, 108 A.D.2d 233 at 243, 488 N.Y.S.2d 768 ).
By providing medical care and treatment within a group practice, the physicians created "what amounted to a joint interest in [plaintiff] with respect to the medical treatment for which he came to the group" ( Watkins v. Fromm , 108 A.D.2d at 243, 488 N.Y.S.2d 768. See Castano v. Lindenhurst Eye Physicians and Surgeons, 220 A.D.2d 477, 477, 632 N.Y.S.2d 167 [2d Dept. 1995] ).
Plaintiff has established through his testimony and that of defendants that the group had undertaken to monitor his condition for the recurrence of cancer. Plaintiff testified that Dr Dougherty informed plaintiff that plaintiff's condition would be monitored for the rest of plaintiff's life. Dr Dougherty then informed plaintiff that monitoring of his condition, care and treatment would be taken over by Drs Griswold and Halsdorfer. The allegation is that he had a scan on May 7, 2015, that was erroneously interpreted by Dr. Conti as negative for cancer. This is based, in part, upon a subsequent report of a CT scan on February 14, 2019 which compared the films and identified a "neuroendocrine tumor" at the pancreatic neck in the May 2015 scan. [NYCEF Doc No. 58] The medical testimony, including that by defendant Dr Griswold, is that renal cancer "is notorious for developing metastasis" and that regular surveillance is recommended. [NYCEF Doc No. 45].
There is no dispute that established caselaw holds that monitoring a patient to observe an abnormal condition qualifies as medical treatment, regardless of whether the condition ultimately diagnosed is a primary tumor or a metastasis of existing cancer. The condition to be diagnosed is cancer and most certainly an accurate reading of a CT scan would not rise or fall on whether it is a metastasis of cancer or a primary tumor. (See Flint v. Zielinski , 130 A.D.3d 1460, 1462, 12 N.Y.S.3d 744 [4th Dept. 2015] motion for reargument or leave to appeal denied, 132 A.D.3d 1330, 17 N.Y.S.3d 342 [4th Dept. 2015] ).
Dr Conti asserts that the nature of his employment with defendant Buffalo Medical Group (BMG) is sufficient to eliminate any relationship with plaintiff and sever the application of continuous treatment. Dr Conti avers that his status is that of an independent contractor and the statute of limitations for any alleged malpractice that may have happened on May 17, 2015, elapsed no later than November 17, 2018. Perhaps if Dr Conti had provided his services through another entity separately identified and outside of BMG such that he could not reasonably be considered to be part of a joint enterprise then his analysis would be on more solid foundation supported by caselaw. However, Dr Conti was providing his services within the auspices of BMG in concert with Dr Dougherty, Dr Griswold, and Dr Halsdorfer, among others. The technical nature of one physician's relationship to the other physicians is not what controls whether a course of treatment for the underlying condition that gives rise to the claim is based.
Addressing the issue of Dr Conti submitting an affirmation instead of an affidavit, such error was cured by the submission of the affidavit sworn to on June 29, 2022 [NYCEF Doc No. 62] (See Stradtman v. Cavaretta , 179 A.D.3d 1468, 118 N.Y.S.3d 828 [4th Dept. 2020] ).
The testimony in this case, when viewed in the light most favorable to plaintiff, as it must be, is that both plaintiff and his physician group believed his condition that gives rise to this lawsuit was being monitored by physicians working at BMG.
In this action, plaintiff continued to treat with BMG, and Dr Dougherty referred plaintiff to Dr Griswold and Dr Halsdorfer for follow up as set forth in plaintiff's medical chart. [e.g., NYCEF Doc Nos 53 & 54] In the light most favorable to plaintiffs, this is sufficient to raise a question of fact whether defendants were engaged in a joint enterprise to monitor plaintiff's condition for future developments. Plaintiff continued to treat as directed and was ultimately diagnosed with a cancerous tumor by a subsequent scan interpreted by Dr Conti on February 7, 2019. Applying the applicable caselaw to the circumstances presented, in viewing the evidence in the light most favorable to plaintiff, plaintiff has raised a question of material fact whether the statute of limitations has been tolled by the continuous treatment doctrine.
The Appellate Division, Fourth Department has previously ruled on facts similar to those in this action:
"While the failure to establish a course of treatment cannot be deemed a course of treatment (see Nykorchuck v. Henriques , 78 N.Y.2d 255, 259, 573 N.Y.S.2d 434, 577 N.E.2d 1026 [1991] ), it is well
settled that ‘[t]he monitoring of an abnormality to ascertain the presence or onset of a disease or condition may constitute treatment for purposes of tolling’ the statute of limitations ( Oksman v. City of New York , 271 A.D.2d 213, 215, 705 N.Y.S.2d 360 [1st Dept. 2000] ; see Reiter v. Sartori , 2 A.D.3d 1412, 1413, 769 N.Y.S.2d 686 [4th Dept. 2003] ; see also Cherise v. Braff , 50 A.D.3d 724, 726, 855 N.Y.S.2d 233 [2d Dept. 2008] ; Dolce v. Powalski , 13 A.D.3d 1200, 1201, 787 N.Y.S.2d 595 [4th Dept. 2004] ). That includes the monitoring of patients who are at high risk for developing cancer for the onset of the disease (see e.g. Sosnoff v. Jackman , 45 A.D.3d 568, 569—570, 845 N.Y.S.2d 391 [2d Dept. 2007], lv. dismissed 10 N.Y.3d 885, 860 N.Y.S.2d 481, 890 N.E.2d 244 [2008] ; Melup v. Morrissey , 3 A.D.3d 391, 391, 771 N.Y.S.2d 8 [1st Dept. 2004] ). Indeed, the CT scan at issue was ordered as part of defendant's "continuing efforts ... to treat a particular condition," i.e., to monitor the potential appearance of cancer in decedent's chest area ( Massie v. Crawford , 78 N.Y.2d 516, 519, 577 N.Y.S.2d 223, 583 N.E.2d 935 [1991] rearg. denied
79 N.Y.2d 978, 583 N.Y.S.2d 196, 592 N.E.2d 804 [1992] ).
The motion for summary judgment on behalf of defendant Robert R. Conti, M.D., seeking to dismiss plaintiffs Anthony D'Auria and Lynn D'Auria’s complaint is denied, without costs.
SO ORDERED.