Opinion
April 25, 1994
Appeal from the Supreme Court, Nassau County (Goldstein, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, and the action is dismissed.
The complaint is based on allegations that the defendant physician failed to administer Rhogam to the plaintiff Mary Schroeter at or around the time of her first pregnancy in 1985. This failure has allegedly caused her to develop certain Rh antibodies which, she claims, could endanger future, as yet unconceived fetuses (cf., Albala v City of New York, 54 N.Y.2d 269). The defendants met their burden of showing that the plaintiffs' cause of action accrued more than 2 1/2 years before the interposition of the cause of action (see, CPLR 214-a; Delaney v Muscillo, 138 A.D.2d 258), so that the burden fell to the plaintiffs to demonstrate the applicability of the toll associated with the "continuous treatment doctrine" (see, Massie v Crawford, 78 N.Y.2d 516; Rizk v Cohen, 73 N.Y.2d 98). The plaintiffs have not met this burden.
The plaintiffs argue that the relevant medical records show that the defendant physician continued to monitor the plaintiff Mary Schroeter for the presence of the Rh antibodies referred to above. However, there is no proof that the defendant physician was actively seeking to eliminate these Rh antibodies or that the presence of these antibodies was harmful to Mrs. Schroeter herself so as to necessitate their elimination. In fact, it appears that "no medical treatment is known which can reverse or destroy [these] antibodies" (Walker v Rinck, 604 N.E.2d 591, 592, n 1 [Ind], citing 3 Attorney's Dictionary of Medicine, at R-84; see also, Delaney v Muscillo, supra; Lough v Rolla Women's Clinic, 866 S.W.2d 851 [Mo]).
Because there was no proof of a continuing effort to cure or ameliorate the "condition" which affects Mrs. Schroeter, the continuous treatment doctrine does not serve to toll the Statute of Limitations (see generally, Cooper v Kaplan, 78 N.Y.2d 1103; Epstein v Srinivasan, 190 A.D.2d 547). For this reason, the order appealed from is reversed and the complaint is dismissed. Bracken, J.P., Sullivan, Miller and Pizzuto, JJ., concur.