The continuous treatment doctrine contains three principal elements. The first is that the plaintiff continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period ( see Nykorchuck v Henriques, 78 NY2d at 259; Stahl v Smud, 210 AD2d 770, 771; Polizzano v Weiner, 179 AD2d 803, 804). The term "course of treatment" speaks to affirmative and ongoing conduct by the physician such as surgery, therapy, or the prescription of medications ( see Marabello v City of New York, 99 AD2d 133, 146). A mere continuation of a general doctor-patient relationship does not qualify as a course of treatment for purposes of the statutory toll ( see Nykorchuck v Henriques, 78 NY2d at 259; McDermott v Torre, 56 NY2d at 405; Nespola v Strang Cancer Prevention Ctr., 36 AD3d 774; Norum v Landau, 22 AD3d 650, 652).
In this case, the theory of the plaintiff' s malpractice claim is that the defendant failed to diagnose her periodontal condition and treat her for this condition or refer her to an appropriate specialist. Accepting the plaintiff's own allegations as true, they fail to establish that the defendant undertook a course of treatment with respect to the condition giving rise to the lawsuit (see, Nykorchuck v. Henriques, supra, at 259; Britton v. Garson, 262 A.D.2d 439 [2d Dept., June 14, 1999];Pietromonaco v. Schwartzman, 259 A.D.2d 474; Grippi v. Jankunas, 230 A.D.2d 826; Polizzano v. Weiner, 179 A.D.2d 803). Moreover, the deposition testimony of the defendant and a dental hygienist employed in his office is insufficient to raise an issue of fact as to whether the defendant actually undertook a course of treatment for the plaintiff's periodontal condition (see, Pietromonaco v. Schwartzman, supra).
The burden then shifted to plaintiff to aver evidentiary facts showing that her case fell within an exception to the statutory time period ( see, Siegel v Wank, 183 AD2d 158). Here, plaintiff claimed that the continuous treatment doctrine applied ( see, Polizzano v Weiner, 179 AD2d 803). The Statute of Limitations under this doctrine is tolled until after the injured party'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'" ( McDermott v Torre, 56 NY2d 399, 405, quoting Borgia v City of New York, 12 NY2d 151, 155).
While Dr. Jankunas's failure to examine, diagnose and treat the plaintiff's periodontal disease "may well be negligent, we cannot accept the self-contradictory proposition that the failure to establish a course of treatment is a course of treatment" ( Nykorchuck v Henriques, supra, at 259). Accordingly, the plaintiff was not entitled to the benefit of the continuous treatment doctrine and any claims arising out of Dr. Jankunas's conduct that occurred before January 18, 1992, are time-barred ( see, CPLR 214-a; Merriman v Sherwood, 204 A.D.2d 998; Iazzetta v Vicenzi, 200 A.D.2d 209; Polizzano v Weiner, 179 A.D.2d 803; Landau v Salzman, 129 A.D.2d 774). Bracken, J.P., Santucci, Goldstein and McGinity, JJ., concur.
ra v Larchmont-Mamaroneck Eye Care Group, 194 A.D.2d 708; Landau v Salzman, 129 A.D.2d 774; Grellet v. City of New York, 118 A.D.2d 141, supra). Once the defendants produced competent evidence in the form of Dr. Kaplan's affidavit that between 1978 and 1983 "nothing was done other than a checking of [the plaintiff's] condition", so as to establish that there was no continuous treatment for a period of time which exceeded the applicable Statute of Limitations (see, Farina v. Rish, 194 A.D.2d 642; Grellet v. City of New York, 118 A.D.2d 141, supra; Sherry v. Queens Kidney Ctr., 117 A.D.2d 663; Barrella v. Richmond Mem. Hosp., 88 A.D.2d 379), the plaintiff was required to produce competent evidence that some medical treatment was in fact administered during this time (e.g., Massie v. Crawford, 78 N.Y.2d 516, supra; Rizk v. Cohen, 73 N.Y.2d 98, supra; Farina v. Rish, supra; Washington v. Elahi, 192 A.D.2d 704; Siegel v. Wank, 183 A.D.2d 158; Pierre-Louis v Ching-Yuan Hwa, 182 A.D.2d 55; Polizzano v. Weiner, 179 A.D.2d 803). In our view, the plaintiff failed to satisfy this burden.
We affirm. The plaintiffs have not satisfied their burden of proving prima facie that the continuous treatment doctrine should apply in this case (see, Polizzano v Weiner, 179 A.D.2d 803; Werner v Kwee, 148 A.D.2d 701). Although the plaintiffs successfully established that an ongoing physician-patient relationship existed with each of the respective defendants, they failed to demonstrate a factual question regarding whether either defendant provided a continuous treatment "for the same illness, injury or condition which gave rise to the * * * act, omission or failure" underlying their medical malpractice claim (CPLR 214-a). Indeed the plaintiffs may not rely upon isolated breast examinations which were "`discrete and complete'" (Nykorchuck v Henriques, 78 N.Y.2d 255, 259, quoting Davis v City of New York, 38 N.Y.2d 257, 260).
Treatment is deemed continuous, with respect to a medical malpractice action, when the plaintiff continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period, the treatment provided was for the same conditions or complaints underlying the plaintiffs medical malpractice claim, and the treatment was in fact continuous. Gomez v Katz, 61 A.D.3d 108, 109 [2d Dep't 2009]; Nykorchuck v Henriques, 78 N.Y.2d 255, 259 [1991]; Stahl v. Smud, 210 A.D.2d 770, 771 [1994]; Polizzano v Weiner, 179 A.D.2d 803, 804 [1992]; Richardson v. Qrentreich, 64 N.Y.2d 896, 898-899 [1985], Here, the date of the alleged malpractice is August 13, 2015, and plaintiff claims continuous treatment through November 7, 2015. The Court notes, however, that Dr. Maurer died on November 3, 2015 and the reference to treatment through November 7, 2015 is likely an error.
The plaintiff states that all medical care and treatment provided by the defendants from late 1992 through January 16, 1996 is appropriately before the court on the basis of continuous treatment by the defendant. The court notes at the onset that once the defendant makes a bona fide showing of an entitlement to the defense of Statute of Limitations, the burden of persuasion to prove the applicability of continuous treatment exception is upon the plaintiff (Polizzano v Weiner, 179 AD2d 803 [2d Dept 1992]). The definition of continuous medical treatment has been a recurring subject of review for the courts.
The plaintiff states that all medical care and treatment provided by the defendants from late 1992 through January 16, 1996 (Plaintiff's Bill of Particulars ΒΆ 2) is appropriately before the Court on the basis of continuous treatment by the defendant (Affidavit of Attorney Potter). The Court notes at the onset that once the defendant makes a bona fide showing of an entitlement to the defense of statute of limitations, the burden of persuasion to prove the applicability of continuous treatment exception is upon the plaintiff [Polizzano et al. v. Weiner, 179 A.D.2d 803 (2nd Dept. 1992)]. The definition of continuous medical treatment has been a recurring subject of review for the Courts.