Opinion
02-7058.
Decided November 30, 2005.
Kaye Lenchner, Corey B. Kaye, Esq., for the Plaintiffs.
Martin, Ganotis, Brown, Mould Currie, Michael J. Cirincione, Esq., for Defendants.
Defendant Andrew J. Merritt, M.D. brings this motion for summary judgment pursuant to CPLR § 3212 seeking an order dismissing this action for medical malpractice upon the grounds that defendant Merritt's care and treatment of plaintiff Carol Korcz was in keeping with generally accepted standards of care as a matter of law.
Defendant Merritt also moves pursuant to CPLR § 3212 and CPLR § 214-a for an order dismissing plaintiffs' complaint upon the grounds that plaintiffs' complaint is barred by the statute of limitations. Defendant Merritt has raised the statute of limitations as an affirmative defense to plaintiffs' action. The parties have stipulated to the discontinuance of the action against defendant Eva F. Briggs, M.D.
Defendant Andrew J. Merritt, M.D. is a board certified family medicine physician licensed to practice medicine in the State of New York. On June 25, 1990, plaintiff Carol Korcz came under defendant Merritt's care as a patient in defendant's family practice. Between June 25, 1990 and March 30, 2000, plaintiff was seen by defendant Merritt or members of his staff that he supervised for a variety of health care issues. On March 30, 2000, during a medical consultation, defendant's physician assistant, Mark Novak, palpated and identified a mass in plaintiff's neck. On April 4, 2000, plaintiff was referred for a CT scan of the head and cervical spine. The CT scan was performed and a report issued on April 13, 2000 which recommended further study by MRI. On April 18, 2000, an MRI study was performed. A benign slow-growing tumor was revealed in the MRI report and on April 20, 2000, plaintiff was referred by defendant's family practice for a neurosurgical consult.
Plaintiffs' complaint alleges, in summary, that defendant Merritt failed to assess, evaluate, diagnose and treat plaintiff's neck tumor in a timely fashion and failed to recognize and heed plaintiff's subjective complaints, indicative of the tumor's presence and advancement, made over a long period of time. Plaintiffs' complaint also alleges a derivative loss of consortium cause of action on behalf of John P. Korcz as spouse of plaintiff Carol Korcz. The merits of this cause of action are not directly in issue in these motions but this claim, derivative in nature, does stand or fall with plaintiff Carol Korcz's medical malpractice cause of action.
There is no dispute that during 1998 and 1999 plaintiff received treatment from defendant Merritt's family practice on a number of occasions for clinical presentations which defendant diagnosed as sinusitis, arthritis or allergies. Plaintiff has submitted an affirmation from a physician, discussed further infra, who opines that the symptoms complained of and treated by defendant on four (4) specific visits in 1998 and 1999 were indicative of the presence and advancement of the mass which was ultimately palpated and identified in March of 2000.
Legal Analysis
A. Defendant Merritt's Summary Judgment Motion on the Issue of Malpractice
Defendant Merritt moves for summary judgment pursuant to CPLR § 3212 on the ground that:
". . . . it was not a departure from the standard of care to not order a CT scan of the neck prior to April 2000, and that the mass on plaintiff's neck was not diagnosable until that time." (Cirincione Affidavit dated June 2nd, 2005 at ¶ 19).
In a medical malpractice action, the physician's burden on a motion for summary judgment can be met by the submission of affidavits or deposition testimony, or a combination of both, and medical records which rebut plaintiff's claim of malpractice with factual proof ( Horth v. Manzur, 243 AD2d 1041 [3rd Dept 1997]). Plaintiff must then rebut defendant's showing by demonstrating, typically through expert medical opinion, a deviation from accepted practice and that the deviation was a proximate cause of the injury ( Suib v. Keller, 6 AD3d 805 [3rd Dept 2004]).
Conclusory statements by a defendant physician that the treatment at issue did not deviate from accepted standards of care are insufficient, as a matter of law, to establish prima facie entitlement to summary judgment ( S'Doia v. Dhabhar, 261 AD2d 968 [4th Dept 1999]). Where the deposition testimony and medical records submitted by defendant physician do not adequately address the specific acts of negligence raised in the pleadings, the physician does not establish prima facie entitlement to summary judgment ( Id., at 968). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers ( Alvarez v. Prospect Hosp., 68 NY2d 320).
Here, defendant Merritt relies upon certain portions of his deposition testimony in support of his summary judgment motion. This testimony was responsive to questions propounded by plaintiff's counsel during pre-trial discovery. These questions relied upon by defendant focus upon whether it was a deviation not to order a CT scan of the plaintiff's neck earlier in time than was actually done in this case. The specific opinion question relied upon by defendant is as follows:
Plaintiff argues that defendant's motion is deficient as it is not supported by an "affidavit." There is no requirement that every summary judgment motion must include an "affidavit" in addition to sworn deposition testimony of the moving party or one with pertinent knowledge of the material facts ( See, Alvarez v. Prospect Hosp., 68 NY2d 320 [1986] ["The fact that defendant's supporting proof was placed before the court by way of an attorney's affirmation annexing deposition testimony and other proof rather than affidavits of fact on personal knowledge is not fatal to the motion."]). Alvarez was a medical malpractice action where the defendant physician moved for and was granted summary judgment dismissing the complaint on a finding that there was no deviation from accepted standards of care as a matter of law. The Court of Appeals found no obstacle in finding for the defendant physician notwithstanding that he did not submit an "affidavit" in addition to his deposition testimony. The real question is whether the deposition testimony is sufficient to establish prima facie entitlement to summary judgment.
"Q. So, in your professional opinion to a reasonable degree of medical certainty it was not a departure from accepted practice to not order CT scans of the region where the neck mass was ultimately where the lesion was detected?
A. That's correct." (Merritt Tr at 138-139).
In reviewing the departure question put by plaintiffs' counsel to defendant Merritt at his deposition (Merritt Tr 139), the court notes that it is limited to the alleged failure to order a CT scan. Moreover, the question does not refer to a specific time frame or establish a date along the physician-patient relationship continuum at which point plaintiff alleges that a CT scan should have been ordered.
This case is largely, but not entirely, dependent upon a determination of whether appropriate diagnostic studies should have been ordered at a particular point in time based upon the plaintiff's clinical presentation at particular points in time. Although one could assume that this question relates to a time frame before the neck mass was "palpable", the question is not a model of clarity and the court may not assume or infer any material facts in favor of the defendant as the moving party propounding this passage from defendant's EBT as a basis for summary judgment. There are a multitude of points in time when the mass was not "palpable" prior to March 30, 2000. It is the defendant's burden of proof, in the first instance, to establish that the treatment and diagnosis of plaintiff's clinical presentation, as a whole and along the entire treatment continuum, was in keeping with the generally accepted standards of care. There is the important question of whether, notwithstanding the palpability or non-palpability of the neck mass at any point in time, the plaintiff's presentation required consideration of alternative diagnoses beyond sinusitis, arthritis and allergies.
Notwithstanding the foregoing, the court finds that these deposition passages are the type of conclusory statements that there was "no deviation from accepted standards of care" that the Fourth Department has rejected as a basis for summary judgment in a medical malpractice action ( S'Doia v. Dhabhar, 261 AD2d 968 [4th Dept 1999]). Moreover, this deposition testimony does not adequately address the multitude of specific acts of negligence advanced by plaintiff in the pleadings and the verified bill of particulars ( Id.).
On the issue of whether this tumor was diagnosable prior to it becoming palpable, defendant Merritt's EBT does contain a response which states:
"That there was no way to diagnose this prior to the mass becoming palpable." (Merritt Tr at 138).
On the other hand, Dr. Elwell's affirmation states that:
". . . . it is my opinion that the tumor was one of very slow growth and was detectable by MRI in 1998. That the patient's records revealed subjective complaints in 1998 and 1999 that could be consistent with the presence of a tumor of the type detected in March, 2000 by R-PA, Mark Novak." (See, Elwell Affirmation at ¶ 4).
Dr. Merritt's EBT testimony on this point, in the court's view, is also of the type rejected by the Fourth Department in S'Doia, supra, as conclusory and insufficient to establish prima facie entitlement to summary judgment in a medical malpractice action. Even assuming that Dr. Merritt's statement was sufficient and shifted the burden to plaintiff to raise a triable issue of fact on this question, the court finds that Dr. Elwell's affirmation and opinions as set forth above would be sufficient to raise an issue of fact on the question of whether this mass was detectable or diagnosable prior to it becoming palpable.
Accordingly, defendant's motion for summary judgment dismissing the complaint on the grounds that the tumor was not diagnosable prior to it becoming palpable in April 2000 and that there was no deviation from accepted standards of care as a matter of law is denied.
B. Defendant's Motion based upon the Medical Malpractice Period of Limitations
This medical malpractice action was commenced by the filing of a Summons with Notice in the Onondaga County Clerk's Office on October 8, 2002. The medical malpractice period of limitations is two years and six months and, generally, any acts of malpractice alleged having been committed more than two and one-half years prior to commencement are barred as a matter of law (CPLR § 214-a). An action for medical malpractice must be commenced within two years and six months of the date of accrual (CPLR § 214-a; See, Massie v. Crawford, 78 NY2d 516, 519) which generally occurs on the date the alleged malpractice takes place ( Massie, at 519). Here, two and one half years prior to the date of commencement (October 8, 2002) would be April 8, 2000.
Therefore, absent a toll of the two and one half year period of limitations (CPLR § 214-a), any alleged acts of malpractice occurring before April 8, 2000 would be barred as a matter of law.
When a defendant physician has established that more than two years and six months have elapsed between the date of the alleged malpractice and the commencement of the action, the burden shifts to plaintiff to establish current entitlement to the application of the continuous treatment doctrine that operates to toll the running of the statute of limitations until the end of the course of treatment ( Merriman v. Sherwood, D.D.S, 204 AD2d 998 [4th Dept 1994]; Schroeter v. Paley, 203 AD2d 551 [2nd Dept 1994]).
Here, plaintiff was diagnosed with a non-malignant slow-growth tumor (known as a "schwannoma") on March 30, 2000 during an examination by defendant Merritt's physician assistant. A CT scan ordered by defendant Merritt's family practice and conducted on April 13, 2000 revealed a 3x4 cm mass in plaintiff's neck. Further evaluation by MRI was recommended by the radiologist. An MRI study ordered by defendant Merritt's family practice and conducted on April 20, 2000 definitively revealed the presence of this "schwannoma". On April 20, 2000, plaintiff was referred to a neurosurgeon for surgical removal of the tumor. This was accomplished successfully.
This term first appears in defendant Merritt's office notes of April 20, 2000.
However, plaintiff alleges that she was left with some neurological deficits in the nerves of the face and neck as a result of the presence of the tumor for a protracted period of time during which defendant Merritt allegedly failed to make an appropriate diagnosis.
According to defendant Merritt, and the undisputed facts in this record, Mark Novak (defendant's physician assistant) palpated and identified the slow-growth tumor on March 30, 2000 and referred plaintiff to other health care providers for appropriate diagnostic testing and surgical consultation thereafter. In light of the undisputed facts in this record, the Court finds that the defendant has met its burden of establishing in the first instance that there are no acts of malpractice during the two years and six months dating back from commencement of this action on October 8, 2002 (The period from April 8, 2000 to October 8, 2002).
Accordingly, the burden shifts to plaintiff to establish her entitlement to the application of the continuous treatment doctrine in order to toll the running of the statute of limitations. This burden includes (1) allegations of malpractice alleged to have occurred at one or more points in time prior to April 8, 2000; and (2) a continuous course of treatment thereafter for the same illness, condition or injury which gave rise to the said acts of omission or failure ( Merriman v. Sherwood, 204 AD2d 998; CPLR § 214-a).
In this regard, plaintiffs submit the affirmation of Bruce Elwell, a physician duly admitted to practice medicine in the State of New York. According to Dr. Elwell, there were subjective complaints by plaintiff Carol Korcz noted in Dr. Merritt's treatment records which were consistent with the presence of a tumor in the region of the neck where the tumor was ultimately detected and confirmed by MRI. According to Dr. Elwell, the subjective complaints included "pain and pressure all over the face" (3/6/98); "numbness in mouth, tongue feels swollen, blurred vision" (4/12/98); "mouth numb and tingly" (4/12/98); "pain with neck motion to R" (6/20/98); "facial pain" (1/14/99).
Dr. Elwell states:
"It is also clear that the patient was treated symptomatically in all of these visits by the physicians and other employees of this practice.
Although these visits were not specifically for the treatment of a tumor, the symptoms complained of at all of these specified visits were consistent with the presence of a tumor in the region where the tumor was ultimately detected by [defendant's physician assistant] and confirmed by MRI." (Emphasis supplied).
Medical records referred to by Dr. Elwell are attached to the moving papers and the court notes that between the visit of March 6, 1998 and April 12, 1998, thirty-seven (37) days transpired. Between the visit of April 12, 1998 and June 20, 1998, sixty-nine (69) days transpired and between the dates of June 20, 1998 and January 14, 1999, two hundred and eight (208) days transpired. Lastly, between January 14, 1999 and March 30, 2000, one (1) year and seventy-five (75) days transpired.
Under the continuing treatment doctrine exception, the two year and six month period does not begin to run until the end of the course 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 ( Prinz-Schwartz v. Levitan, M.D., 17 AD3d 175 [1st Dept 2005]). The premise underlying the continuous treatment doctrine is 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 ( Young v. New York City Health and Hospital Corp., 91 NY2d 291). A patient's continuing general relationship with a physician, or routine periodic health examinations, will not satisfy the doctrine's requirement of a "continuous treatment" of the condition upon which the allegations of medical malpractice are predicated ( Massie v. Crawford, 78 NY2d 516).
Thus, essential to the application of the doctrine is that there has been a course of treatment established with respect to the condition that gives rise to the lawsuit ( Nykorchuck v. Henriques, 78 NY2d 255). In the absence of a continuing effort by a doctor to treat a particular condition, none of the policy reasons underlying the continuous treatment doctrine justify the patient's delay in bringing suit ( Id.).
In the Fourth Department, the monitoring of an abnormality to ascertain the presence of a disease of condition may constitute treatment for purposes of tolling the statute of limitations ( Reiter v. Sartori, 2 AD3d 1412 [4th Dept 2003]). In Reiter v. Sartori, the defendant doctor had failed to diagnose the presence of a carcinoma in plaintiff's right breast under the assumption that it was fibrocystic breast disease and not cancer. The Fourth Department held that this monitoring of the abnormality was treatment for purposes of tolling the statute of limitations. The doctrine does not however become invoked where the patient initiates return visits merely to have his or her condition checked ( Cizek v. Mary Imogene Bassett Hospital, 176 AD2d 1035 [3rd Dept 1991]).
The 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 not been treatment ( Hein v. Cornwall Hospital, 302 AD2d 170 [1st Dept 2003], citing Green v. Varnum, 273 AD2d 906 [4th Dept 2000]; Bonanza v. Raj, 280 AD2d 948 [4th Dept 2001]; Hill v. Manhattan West Med. Group HIP, 242 AD2d 255 [1st Dept 1997] ["Merely because defendants did not diagnose plaintiff decedent's condition as cancer is not a basis to find that they were not treating him for it if his symptoms were such as to indicate its existence and they nevertheless failed to properly diagnose."]). The Court of Appeals has stated:
"[N]either individuals suffering from chronic conditions, noVr patients being 'monitored' for a specific medical condition to ensure that it improves or at least does not deteriorate (as opposed to a general physical examination), are necessarily outside the doctrine" ( Ganess v. City of New York, 85 NY2d 733).
Here, the affidavit of Dr. Elwell submitted by plaintiffs has established that the plaintiff's complaints of pain and pressure, numbness, facial pain, etc. on the four specific aforementioned dates were all symptoms consistent with the presence of the tumor in the region where it was ultimately diagnosed and detected. Dr. Elwell's affidavit also alleges that plaintiff received "treatment" (albeit for symptoms of the undiagnosed or misdiagnosed tumor) for these complaints.
However, the Fourth Department has made it abundantly clear in two recent continuous treatment cases involving misdiagnoses ( Green v. Varnum, 273 AD2d 906 [4th Dept 2000] and Bonanza v. Brown, 280 AD2d 948 [4th Dept 2001]) that the contemplation of return visits by the plaintiff-patient and the defendant-physician is a key element of the continuous treatment doctrine. In Green, supra, the Fourth Department stated as follows:
"Plaintiff was treated by defendants on numerous occasions over several years for frequent infections, joint and skeletal pain, fatigue, and various neurological disorders. Plaintiff commenced this medical malpractice action, alleging that defendants failed to diagnose her with multiple myeloma."
* * * *
"Plaintiff submitted proof that some of her return visits to defendants were contemplated by both plaintiff and defendants, and that defendants treated plaintiff for symptoms indicating the existence of multiple myeloma. Thus, plaintiff raised a triable issue of fact whether defendants continuously treated her 'for the same illness, injury or condition which gave rise to the said act, omission or failure (CPLR 214-a).'" ( Green, 273 AD2d at 906-907) (Emphasis supplied)
In Bonanza, supra, the Fourth Department stated:
"Plaintiff's decedent was treated for dyspepsia and reflux esophagitis by [defendant] on several occasions over a two-year period.
Plaintiff commenced this medical malpractice action alleging that defendant failed to diagnose decedent with gastric adenocarcinoma."
* * * *
"Plaintiff submitted proof that decedent's return visits to defendant were contemplated by both decedent and defendant, and that defendant was treating decedent for symptoms indicating the existence of gastric adenocarcinoma. Thus, plaintiff raised a triable issue of fact whether defendant continuously treated decedent 'for the same illness * * * or condition which gave rise to the said act, omission or failure (CPLR 214-a; see, Green v. Varnum, 273 AD2d 906, 907).'" (Emphasis supplied).
These Fourth Department decisions are in keeping with the Court of Appeals decision in Allende v. NYCHHC, 90 NY2d 333 in which the Court stated:
"One of the key elements is that '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 that last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past. * * * [W]here the physician and patient reasonably intend the patient's uninterrupted reliance upon the physician's observations, directions, concern, and responsibility for overseeing the patient's progress, the requirement for continuous * * * treatment * * * [is] satisfied.' ( Richardson v. Orentreich, 64 NY2d 896, 898-899 [emphasis added]; see also, Cox v. Kingsboro Med. Group, 88 NY2d 904)." ( Allende, 90 NY2d at 338 ["While there is ample support for the finding that the doctors at Lincoln expected plaintiff to return, there is no evidence that plaintiff herself shared that intention."]) (Emphasis Supplied).
These Fourth Department cases also establish that there are two prongs necessary to invoke the continuous treatment doctrine in a misdiagnosis case. The first is that there must be evidence that the plaintiff was treated for the symptoms of the condition for which a misdiagnosis is claimed.
Here, plaintiff has submitted proof that she was being treated by defendant Merritt for symptoms indicating the existence of the schwannoma in plaintiff's neck as early as March 6, 1998 (See, Elwell Affidavit at ¶ 3). Thus, plaintiff has raised a triable issue of fact on the question of whether the symptoms identified by defendant Merritt as correlating to sinusitis, arthritis or allergies were in fact symptoms of the presence and development of the schwannoma ( See, Shifrina v. City of New York, 5 AD3d 660 [2nd Dept 2004] [Plaintiff's expert affidavit raised a triable issue of fact as to whether the symptoms plaintiff experienced and sought treatment for at defendant hospital were indicative of lung cancer]).
In Shifrina, supra, the Second Department also found that plaintiff's expert also raised a triable issue of fact as to whether the plaintiff sought subsequent treatment from the defendant hospital for lung cancer when he went there seeking "follow up care and referral for oncology treatment" ( Shifrina, 5 AD3d at 662). Accordingly, the Shifrina court found that plaintiff's expert opinion on this issue arguably brought plaintiff's action within the continuous treatment doctrine because:
"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." ( Shifrina v. City of New York, 5 AD3d at 662, citing McDermott v. Torre, 56 NY2d 399, 406 [1982]).
However, notably absent from the plaintiff's submissions is any assertion that either the plaintiff or defendant Merritt contemplated a continuous course of treatment in the form of return visits, follow-up appointments or continued monitoring or observation of an abnormality. There is no indication of any scheduled follow-up visits for any of the dates suggested by Dr. Elwell upon which plaintiff complained of symptoms which Dr. Elwell correlates with the development of the slow-growth tumor. In other words, there is no indication in this record that each of these visits (3/6/98, 4/12/98, 6/20/98 or 1/14/99) was anything other than a discrete isolated treatment encounter without any intended, discussed or contemplated follow-up or continued monitoring of an abnormality.
Insofar as any tangible deformity or palpable neck mass is concerned, plaintiff's own deposition testimony confirms that defendant's family practice considered this region of plaintiff's neck to be "normal" on all occasions prior to March 30, 2000 (See, Carol Korcz Tr at 63 ["The same thing they always said. It was normal."]). It is well settled that an absence of treatment can not be considered treatment for continuous treatment tolling purposes (See, Nykorchuck v. Henriques, 78 NY2d 255 [1991] [Continuous treatment for condition "A" during which doctor misdiagnoses condition "B" does not qualify as continuous treatment for condition "B"]).
The court has reviewed defendant Merritt's entire EBT transcript and finds that the only question asked of him relating to the scheduling or contemplation of "follow-up" appointments for all of plaintiff's visits is on page 47 of the transcript where a December 6th, 1993 consultation for a sinus infection is discussed. Dr. Merritt answered "No" when asked if plaintiff was given a follow-up appointment after the consultation of 12/6/93 (Merritt Tr at 47, line 23-24).
Plaintiff's expert, Dr. Elwell, does not indicate in his affidavit that, in his opinion, any of the identified visits were part of a continuing course of treatment marked by mutually contemplated and scheduled follow-up visits to monitor plaintiff's condition for the symptoms complained of and correlated with the schwannoma by Dr. Elwell.
The court has also reviewed the entire transcript of plaintiff Carol Korcz's deposition. There is no testimony or discussion in the entire transcript on the issue of whether plaintiff and defendant contemplated return or follow-up visits for the symptoms complained of and identified by Dr. Elwell as being indicative of the presence of the tumor on 3/6/98, 4/12/98, 6/20/98 or 1/14/99. Plaintiffs have not submitted an affidavit or other sworn testimony of Carol Korcz addressing the contemplation of return visits element identified by the Fourth Department's decisions in Green and Bonanza, supra.
Plaintiff's expert, Dr. Elwell, does not provide any analysis or opinion relating to any of the visits in between the four (4) visits identified in his affidavit as being indicative of the presence of a schwannoma or whether these in between visits were patient instigated visits seeking treatment related to the four treatment visits identified by Dr. Elwell.
Dr. Elwell's affidavit dated September 7, 2005 states in this regard at ¶ 3 that there were: ". . . similar complaints at various times and visits prior to that time. It is also clear that the patient was treated symptomatically at all these visits by the physicians and other employees of this practice." Plaintiff's medical records are voluminous and there are a large number of visits "at various times" which are not addressed by Dr. Elwell. It is not this court's function to sort through voluminous records in an attempt to identify the visits which occurred "at various times" as casually and conclusively referenced by Dr. Elwell. More importantly, this court obviously lacks the qualifications to sort through the many other visits "at various times" to identify and diagnose the causal relationship of any particular symptom complained of "at various times" with the potential presence of the schwannoma. That is plaintiff's burden and Dr. Elwell's task and the court finds that the record on the relationship, if any, of the presence of the schwannoma with the symptoms complained of "at various times" to be manifestly insufficient.
Assuming the court were to find, which it has not, that the cluster of visits between April 12, 1998 and June 20, 1998, because of their proximity, represented contemplated return visits or were timely return visits instigated by the plaintiff and thereby constituted a continuous course of treatment, the action was commenced on October 8, 2002 — some four (4) years and four (4) months from the last visit in this cluster on June 20, 1998.
The January 14, 1999 visit was two hundred and eight (208) days after the prior visit of June 20, 1998 identified by plaintiff's expert, Dr. Elwell. There is no evidence in this record to suggest that this was an intended, scheduled, or contemplated follow-up visit for the schwannoma related symptoms identified by Dr. Elwell in relation to the June 20, 1998 visit. The January 14, 1999 visit included a complaint of "facial pain" which Dr. Elwell correlates to the presence of the schwannoma. The prior visit of June 20, 1998 identified by Dr. Elwell as being a schwannoma related visit was limited to complaints of pain in the right arm, neck and finger and did not include a complaint of facial pain. There is no evidence in this record that, following the January 14, 1999 visit, plaintiff and defendant scheduled or contemplated a return or follow-up visit at a later date. Although there were a number of visits between January 14, 1999 and March 30, 2000, plaintiff's expert, Dr. Elwell, has not identified any of these as being related to the swchwannoma or containing deviations from the standard of care.
The January 14, 1999 visit was also three (3) years, eight (8) months and twenty four (24) days before the commencement of this action on October 8, 2002.
In light of the foregoing, and in accordance with the Fourth Department's decisions in Green and Bonanza, the court finds that plaintiffs have failed to raise a triable issue of fact on the question of whether there was continuous treatment which would toll the period of limitations for any acts of alleged malpractice prior to April 8, 2000. There simply is no evidence in this record that establishes that at the consultations identified by Dr. Elwell, the plaintiff and defendant scheduled or contemplated return visits as part of an ongoing and continuous course of treatment which would toll the accrual of this cause of action.
In light of the foregoing, defendant's motion for summary judgment based upon the failure to commence this action within two years and six months of the accrual of the cause of action is granted. Plaintiffs have failed to establish entitlement to the application of the continuous treatment doctrine or to raise a question of fact sufficient to defeat summary judgment in favor of defendant on that issue. This constitutes the decision of the court. Defendant's counsel to submit proposed order on notice.