Opinion
604419/2015
09-13-2017
Anthony DIRAFFAELE, Plaintiff, v. Jasjit KOCHAR, M.D.; Queens–Long Island Medical Group, P.C.; and Brookhaven Memorial Hospital Medical Center, Defendants.
PLTF'S ATTORNEY: Law Offices of Sandra M. Radna, 700 Fort Salonga Road, Northport, New York 11768 DEFT'S ATTORNEY: Silverson, Pareres & Lombardi, LLP, Attorneys for Jasjit Kochar, M.D. and Queens–Long Island Medical Group, 192 Lexington Avenue, 17th floor, New York, New York 10016, Vardaro & Associates, LLP, Attorneys for Brookhaven Memorial Hospital Medical Center, Inc., 732 Smithtown Bypass, Suite 203 Smithtown, New York 11787
PLTF'S ATTORNEY: Law Offices of Sandra M. Radna, 700 Fort Salonga Road, Northport, New York 11768
DEFT'S ATTORNEY: Silverson, Pareres & Lombardi, LLP, Attorneys for Jasjit Kochar, M.D. and Queens–Long Island Medical Group, 192 Lexington Avenue, 17th floor, New York, New York 10016, Vardaro & Associates, LLP, Attorneys for Brookhaven Memorial Hospital Medical Center, Inc., 732 Smithtown Bypass, Suite 203 Smithtown, New York 11787
Sanford Neil Berland, J.
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by defendant, Brookhaven Memorial Hospital Medical Center, Inc., dated November 1, 2016, and supporting papers; (2) Answering Affidavits made by plaintiff, dated December 28, 2016, and supporting papers; (3) Replying Affidavits made by defendant Brookhaven Memorial Hospital Medical Center, Inc., dated February 3, 2017, and supporting papers; it is,
ORDERED that the motion made by defendant Brookhaven Memorial Hospital Medical Center pursuant to CPLR 3212 seeking summary judgment and dismissing the complaint as against them is denied without prejudice to renewal upon a more complete record.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff as a result of medical malpractice. Among other things, the plaintiff alleges that the defendant hospital failed to timely diagnose a cancerous tumor in his left kidney. More specifically, plaintiff alleges that a CT scan of his abdomen and pelvis taken on December 1, 2010, while he was a patient at Brookhaven Memorial Hospital Medical Center (Brookhaven Hospital), showed suspicious renal abnormalities which should have been disclosed to him. He claims that rather than ordering further testing and follow up, Brookhaven Hospital told him that the results of the CT scan were "normal." On July 20, 2015, more than four and a half years after that initial hospitalization but just over thirteen months after he was told he had renal cancer, plaintiff commenced this action against Brookhaven Hospital and a second hospital, two medical groups and five individual physicians by filing a Summons and Complaint naming them as defendants.
Plaintiff's claims against six of the defendants—Yasser Mir, M.D., Jason L. Hodges, M.D. and Jeremy W. Simonsen, M.D., whom he alleged had been involved in his care during his 2010 visit to Brookhaven Hospital, and Manuel Grinberg, M.D., Advanced Urology Centers of New York and John T. Mather Memorial Hospital, who were involved in the nephrectomy plaintiff underwent in July 2014 and against whom plaintiff had alleged a claim for medical malpractice related to plaintiff's prostate cancer —were previously discontinued with prejudice, and the names of those defendants have been removed from the caption.
Defendant Brookhaven Hospital now moves pursuant to CPLR 3212 for summary judgment dismissing the complaint as against it as barred by the two-and-a-half-year statute of limitations for medical malpractice claims set forth in CPLR 214–a. In support of its motion, Brookhaven submits, inter alia , a copy of the pleadings, plaintiff's verified bill of particulars, defendant's records regarding medical care it provided to plaintiff on November 30–December 1, 2010, April 29, 2012, June 1, 2012, February 14–15, 2013, and June 13–14, 15 and 16–17, 2014, as well as an affirmation of John C. Rohe, M.D.
Plaintiff opposes the motion, contending that "there was a course of treatment, it was continuous, and the treatment was for the condition or complaint underlying the claim of malpractice," and that, in any event, there is a question of fact as to whether the running of the two-and-a-half-year statute of limitations was tolled as a result of his visits to and the care he received at Brookhaven Hospital after his 2010 visit. Plaintiff submits, among other things , his own affidavit, the records of his visits to Brookhaven Hospital from November 30, 2010 through June 17, 2014, as well as the affirmation of Jordan Haber, M.D.
"The proponent of a summary judgment motion must make A prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 487 NYS2d 316 [1985] ). To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented (Winegrad v. New York Univ. Med. Ctr., supra ). "Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v. New York Univ. Med. Ctr., supra ). When, as here, the motion is based upon the bar of the statute of limitations, "[t]he defendant interposing the statute of limitations as an affirmative defense has the burden of proving its applicability" ( CPLR 3018[b] ; Connell v. Hayden , 83 AD2d 30, 443 NYS2d 383 [2d Dept 1981] ). The burden is then upon the party opposing the motion to demonstrate the applicability, or, at the very least, the existence of a triable issue of fact as to the applicability, of an exception to the running of the statute of limitations on the claim or action. (Id. )
Pursuant to CPLR 214–a, the statute of limitations for medical malpractice, an action for medical malpractice "must be commenced within two years and six months 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 the said act, omission or failure." (Emphasis supplied.) As elaborated by the case law, the explicit incorporation of the continuous treatment exception into CPLR 214–a functions such that the two-and-a-half-year statute of Limitations for a medical malpractice action is tolled until after the plaintiff's last 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" (see McDermott v. Torre , 56 NY2d 399, 405, 452 NYS2d 351 [1st Dept 1982], quoting Borgia v. New York , 12 NY2d 151, 155, 237 NYS2d 319 [2d Dept 1962], affd 15 NY2d 665, 255 NYS2d 878 [1964] ; see Young v. New York City Health & Hosps. Corp. , 91 NY2d 291, 670 NYS2d 169, 693 NE2d 196 [1st Dept 1998] ; Allende v. New York City Health & Hosps. Corp. , 90 NY2d 333, 660 NYS2d 695 683 NE2d 317 [1st Dept 1997]. Where, as here, the plaintiff's medical malpractice claim originates in the physician's or hospital's alleged failure to timely and properly diagnose and then treat the underlying ailment, determining whether or not the care rendered to the plaintiff by the defendant over time constitutes "continuous treatment" for purposes of the statutory toll may depend upon the continuity vel non of the patient's symptoms and physical complaints and whether or not the plaintiff has continued to present them to the defendant healthcare provider in the course of the therapeutic relationship.
As the court noted in Chestnut v. Bobb–McKoy , 94 AD3d 659, 943 NYS2d 461 [1st Dept 2012] :
With respect to failure to diagnose cases, courts have held that a "failure to make the correct diagnosis as to the underlying condition while continuing to treat the symptoms does not mean, for purposes of continuity, that there has been no treatment" (see Hein v. Cornwall Hosp. , 302 AD2d 170, 753 NYS2d 71 [1st Dept 2003] ; Dellert v. Kramer , 280 AD2d 438, 721 NYS2d 342 [1st Dept 2001] ). Thus, a physician or hospital cannot escape liability under the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, where it treated the patient continuously over the relevant time period for symptoms that are ultimately traced to that condition ( Hill v. Manhattan W. Med. Group–H.I.P , 242 AD2d 255, 661 NYS2sd 229 [1st Dept 1997]; see e.g. Shifrina v. City of New York , 5 AD3d 660, 774 NYS2e 85 [2d Dept 2004] ).
Thus, while "[n]either the mere ‘continuing relation between physician and patient’ nor ‘the continuing nature of a diagnosis’ is sufficient to satisfy the requirements of the doctrine," ( Nykorchuck v. Henriques , 78 NY2d 255, 573 NYS2d 434, 577 NE2d 1026 [3d Dept 1991] ; see Massie v. Crawford , 78 NY2d 516, 577 NYS2d 223, 583 NE2d 935 [1st Dept 1991] ), and even though "continuous treatment ‘does not contemplate circumstances where a patient initiates return visits merely to have ... her condition checked’ " (Massie v. Crawford , supra at 520, quoting from McDermott v. Torre , supra, at 405), continuous treatment sufficient to toll the running of the two-and-a-half-year statute of limitations will be found where the plaintiff repeatedly returns to the health-care provider with symptoms and complaints that are only later linked to the plaintiff's underlying malady (see e.g. , Chestnut v. Bobb–McKoy , supra (lung cancer ); Harris v. Dizon , 60 AD3d 495, 875 NYS2d 58 [1st Dept 2009] (colon cancer ); Hein , 302 AD2d 170, 753 NYS2d 71 [1st Dept 2003] (bowel obstruction ); Williams v. Health Ins. Plan of Greater NY , 220 AD2d 343, 633 NYS2d 22 [1st Dept 1995] (throat cancer ) ). As stated by the court in Chestnut, supra
Where the malpractice claim is based on an alleged failure to properly diagnose a condition, "the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition" ( Simons v. Bassett Health Care, 73 AD3d 1252, 900 NYS2d 781 [3d Dept 2010] ; see also Hein v. Cornwall Hosp. , 302 AD2d 170, 753 NYS2d 71 [1st Dept 2003] ).
See also Wilson v. Southhampton Hospital , 112 AD3d 499, 500 (1st Dep't 2013).
Here, Brookhaven Hospital argues, and Dr. Rohe opines on its behalf, that plaintiff's visits to the hospital subsequent to his November–December 2010 hospitalization were related neither to the renal anomalies that were identified in the December 1, 2010 CT scan nor to "the issues dealt with during the November 30, 2010 visit" (Hofer Aff. at Paragraph 16), and that "none of [plaintiff's] subsequent visits were in any way related to the complaints or care rendered during the November 30, 2010 encounter" (Rohe Aff. Page 3). Accordingly, in their view, any malpractice claim stemming from the 2010 hospitalization was barred by the two-and-a-half-year statute of limitations when it was first asserted in July 2015.
In opposition, plaintiff contends, both in his own affidavit and through the affirmation of his attorney, that except for one visit, for a physical injury to his right foot, all of his periodic visits to Brookhaven Hospital, from his first visit on November 30, 2010, through the discharge from his final admission, on June 17, 2014, related to the same underlying condition and involved the same constellation of complaints:
"The care and treatment rendered on December 1, 2010 to Plaintiff at Brookhaven Hospital is absolutely related to the care he received at his subsequent visits.... Defendant Brookhaven repeatedly failed to make the correct diagnosis as to Plaintiff's underlying condition, while continuing to treat him for chest pain, abdominal pain, and nausea."
(Rothstein Aff. at Paragraph 17). At the very least, he argues, there are triable issues of fact as to whether the continuous treatment toll applies, i.e., whether "there was a course of treatment, it was continuous, and the treatment was for the condition or complaint underlying the claim of malpractice."
In reply to plaintiff's contentions, Brookhaven Hospital takes the position that all of plaintiff's "emergency department encounters were discrete, complete events," that no future visit to the facility was anticipated when he was discharged from the hospital after the November 30–December 1, 2010 "encounter" and there was no plan for his continued treatment there, and that "the treatment rendered at each subsequent visit was not for the same complaints made during the November 30th visit." A further affirmation from Dr. Rohe is provided in which he reiterates his opinion that none of the plaintiff's visits to the hospital subsequent to the November 30, 2010 "encounter" were "in any way related to the complaints or care rendered" during that initial visit, that the care rendered to plaintiff at that visit "was isolated to that one visit," that "[t]here was no continuity of care and no evidence of a relationship between the conditions addressed during that visit and any of the subsequent visits at Brookhaven." Dr. Rohe also notes that the affirmation of plaintiff's expert, Dr. Haber, although expressing the opinion that plaintiff's claim against the hospital is meritorious, does not address whether any of the visits subsequent to the "November 30, 2010 admission [were] related to the complaints, care or treatment rendered at that time."
In fact, the hospital records indicate that plaintiff was treated in the emergency department and not formally admitted to the hospital during his 2010 visit. From the records supplied by both parties, it appears that he presented at Brookhaven Hospital's emergency room on the evening of November 30 complaining of sharp abdominal pain, with nausea and belching, radiating to his chest, which he said he had been experiencing for some number of days along with mild dysuria, although he was no longer experiencing the latter at the time of the visit. Among other things, an EKG, chest x-ray, abdominal/pelvic CT scan and blood and urine tests were ordered and performed. When it came out, after the attending physician had, according to the notations in the hospital record, "explained all of the CT findings to the patient," that "his pain only began when he ran out of his regular Vicodin pain pills," he was given Vicodin. He was discharged from the emergency room early on the morning of December 1, evidently no longer in pain.
In what appears to be the final physician's entry for that visit, the doctor who had attended plaintiff included the following:
"... I had a long discussion about possible causes of the pain, [signs and symptoms] to look out for, and indications to return, as well as need for [follow up]. He voices clear understanding and agreement, he says he plans to call his [primary care physician] later today."
Plaintiff's next two documented visits to Brookhaven Hospital were in 2012. The second, of those, on June 1, was occasioned by plaintiff dropping a fiberglass car body on his right foot; his fourth and fifth toes were reddened and swollen, but x-rays showed they were not fractured, and he was sent home. The first visit, at the end of April 2012, was somewhat more consequential. Plaintiff was complaining of both bilateral heel pain radiating up to his knees and chest pain. Chest x-ray, EKG and cardiac workup were deemed unremarkable; the heel pain was attributed to diabetic neuralgia, and he was discharged early on the 30th, with pain medication and instructions to follow up with his primary care doctor. His creatine and "BUN"—blood urea nitrogen —levels were both reported as "H"—"High." (Plaintiff's BUN level had also been reported as "H" at his 2010 visit).
Plaintiff returned to Brookhaven Hospital in February 2013. He came to the hospital complaining of "hot feeling, diaphoresis, nausea and chest pain that was sharp across his chest, ...." He had had an episode of vomiting at home. He was admitted for cardiac monitoring and testing, and, ultimately, he was discharged with instructions to follow up with his primary care doctor and with the consulting cardiologist who had seen him at the hospital. Notably, however, he is described in the handwritten "Assessment" section of the attending physician's "Consultation Request" as having a "[history of] renal insufficiency" and in the corresponding section of the consulting cardiologist's "Consultation" as having "6. History of chronic kidney disease."
The plaintiff's final visits to Brookhaven Hospital occurred in June of 2014. On the night of June 13, plaintiff arrived at the hospital's emergency room complaining of abdominal pain radiating to his chest and constipation. According to the examining doctor's notations, the plaintiff stated that "he does not have chest pain in the absence of abdominal pain," "that the majority of the time ... he has abdominal pain, he does not develop chest pain," that "[h]e has felt this way multiple times in the past" and "has had frequent similar episodes over past years." His white blood cell count was elevated, but a radiograph showed no bowel obstruction and his EKG was consistent with his prior, February 2013 EKG. He was prescribed a laxative and sent home in the early hours of June 14, with instructions to return immediately if pain increased or if he experienced any fevers, persistent vomiting or "any other concerns" and to follow up with his doctor "by Monday."
Plaintiff returned to the emergency room that same night, shortly after midnight, complaining of increasing abdominal pain and ongoing constipation. A CT scan confirmed the presence of a left renal mass suspicious for malignancy. BUN and creatine levels were elevated, and he was advised to remain at the hospital and to be admitted "for further evaluation of abdominal pain and renal mass." Plaintiff elected instead to go home for "trial treatment of constipation at home," to return if not feeling better, and was released in the morning hours of June 15.
He came back to Brookhaven Hospital the following morning, June 16, and was admitted for further evaluation of the left renal mass and for chronic kidney disease, which was described as remaining "stable." The plaintiff declined a whole-body CAT scan requested by "oncology," but he did submit to an MRI, which confirmed the left renal mass. He was told, and acknowledged, that he needed "follow up as soon as possible" with "Urology and Gastroenterology as well as Surgery." He was given telephone numbers for at least two doctors affiliated with the hospital in case he elected to seek treatment from them on an outpatient basis. He stated that he was moving to South Carolina and would seek follow up there, and elected to be discharged from Brookhaven Hospital on June 17th. According to the allegations of the complaint, plaintiff in fact underwent a left nephrectomy on July 11, 2014, performed by the urologist to whom he had been referred, Dr. Grinberg, at Mather Hospital. Although, as noted above, he originally named them in this action as defendants, plaintiff subsequently agreed to discontinue his claims against both Dr. Grinberg and Mather Hospital.
In sum, the record at this juncture, at least as presented by the parties, is more equivocal and fact-issue laden than either party allows. Notwithstanding the opinion expressed by Dr. Rohe, it is evident that some of the same symptoms and complaints that prompted the CT scan of plaintiff's lower abdomen on December 1, 2010—nausea, vomiting and abdominal pain with chest pain—were symptoms and complaints that the plaintiff exhibited in one form or another periodically over the succeeding years. Whether plaintiff's interactions with Brookhaven Hospital, either alone or in conjunction with plaintiff's temporally intervening, but potentially complementary, visits to his personal physician—who, along with his practice, remains a defendant in the action and whom plaintiff alleges share in the same claimed malpractice as Brookhaven Hospital (but none of the records of which have been provided either in support of or in opposition to the current motion)—constitute a continuous course of treatment for the same "disease, condition or complaint" or, conversely, are too disparate or irregular to toll the statute of limitations, presents issues of fact that cannot be resolved on the physically bulky but substantively incomplete record that has been provided by the parties, especially when that record is viewed, as it must be, in the light most favorable to the plaintiff (see Roth v. Barreto , 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001] ; O'Neill v. Town of Fishkill , 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987] ).
McDermott v. Torre , supra , although invoked by defendant's counsel for the proposition that too lengthy a passage of time between return visits can preclude a finding of continuous treatment sufficient to toll the statute of limitations, does not require a different result here. On the contrary, in the passage quoted by the defendant's counsel in her reply papers, the Court of Appeals was reflecting on the question of whether "a complete discharge by a physician forever bars a finding of continuing treatment," a question the Court answered in the negative:
"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. Thus, there will be continuing treatment when a patient, instructed that he or she does not need further attention, soon returns to the doctor because of continued pain in that area for which medical attention was first sought."
56 NY2d at 406 (emphasis supplied). Quite apart from the fact-dependent nature of what constitutes "a timely return visit" and of how much time must pass before continuity lapses (see e.g. Lewis v. Rutkovsky , 2017 NY Slip Op. 06342 [1st Dept August 29, 2017] (question of fact as to continuity of treatment where plaintiff's complaint of sometimes severe headaches and, eventually, vision difficulties—which she claimed were symptomatic of a belatedly diagnosed meningioma —extended over an eight-year period, with five years passing between plaintiff's second complaint, in July 1999 and her next complaint, in July 2004) ), here, the defendant hospital's own records indicate that when plaintiff left the hospital on December 1, 2010, there was no "complete discharge by a physician." On the contrary, the visit ended on an explicitly non-final note, with no resolution of plaintiff's complaints, but instead, as quoted above, "a long discussion about possible causes of the pain, [signs and symptoms] to look out for, and indications to return, as well as need for [follow up]...."
Further, even if there were not issues of fact with respect to the continuity, vel non , of plaintiff's treatment by the defendant hospital, and possibly others, from 2010 forward, it would still be necessary to deny the current motion for summary judgment, which seeks dismissal of the complaint in its entirety, because at least some of the allegedly negligent care rendered by the moving defendant occurred within the two-and-a-half-year period before this action was commenced. Thus, even if plaintiff ultimately is barred by the statute of limitations from grounding his claim solely in the medical malpractice that he alleges occurred in 2010, to the extent he is claiming that medical malpractice also occurred in connection with his subsequent visits to the defendant hospital, at least one of which occurred less than two-and-a-half-years before this action was commenced, the action itself is not time barred. While it may well be that the allegation—that the defendant hospital "repeatedly failed to make the correct diagnosis as to Plaintiff's underlying condition"—is more clearly stated in the plaintiff's opposing papers on the current motion than in his pleadings, nonetheless, it would require denial of the motion even in the absence of issues of fact with respect to whether plaintiff's treatment by the defendant from the initial visit in 2010 through his last in 2014 constituted "continuous treatment" sufficient to toll the statute of limitations imposed by CPLR 214–a.
For all of these reasons, the motion of defendant Brookhaven Memorial Hospital Medical Center, sued herein as Brookhaven Memorial Hospital, made pursuant to CPLR 3212 seeking summary judgment and dismissing the complaint as against it is denied without prejudice as to renewal upon a more complete record.