Opinion
October 24, 1967
Appeal by the plaintiff from an order of Special Term, St. Lawrence County, entered on April 27, 1967 which dismissed the complaint as barred by the Statute of Limitations. In 1952 the plaintiff consulted her physician relative to a swelling of a gland in her neck. A biopsy of the cervical gland was recommended and performed, and it was submitted to the defendant, St. Lawrence County Laboratory, for examination. On February 6, 1952 the laboratory issued its report setting forth a diagnosis of Hodgkin's disease. Plaintiff was thereafter treated for this disease until 1965 when the physician then treating her questioned the correctness of the original biopsy report and requested a further examination. The original biopsy was then submitted to the Division of Laboratories and Research of the New York State Department of Health which issued its report on March 17, 1965 setting forth a diagnosis of chronic lymphadenitis. On June 8, 1965 plaintiff commenced an action for malpractice against the St. Lawrence County Laboratory and St. Lawrence County. The defendants moved, under CPLR 3211 (subd. [a], par. 5), to dismiss the complaint as barred by the Statute of Limitations, and the sole issue raised on this appeal is whether the Statute of Limitations commenced to run from the date of the original diagnosis report, or commenced to run at the end of the treatment based upon the original diagnosis and the time of its discovery as erroneous. It is plaintiff's contention that the "continuous treatment" theory applies to her cause of action, and that it did not accrue until the discovery of the erroneous diagnosis and the treatment based on such diagnosis was discontinued. In support of her contention, the plaintiff relies on the case of Borgia v. City of New York ( 12 N.Y.2d 151, 155), which held that "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, the 'accrual' comes only at the end of the treatment." In the cases where the "continuous treatment" theory has been upheld, the professional relationship by the patient and physician or patient and hospital did not terminate prior to the period of time provided for by the Statute of Limitations. In the instant case, the defendant laboratory did not perform any continuous treatment for the plaintiff, but instead only one act, and the rule of the Borgia case may not be applied to extend the statute for a period of 13 years during which time the plaintiff was treated by a number of physicians. The only act performed by the defendant laboratory in relation to the plaintiff was the diagnosis report made February 6, 1952 which it is alleged created an action for malpractice. Order affirmed, without costs. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.