Opinion
Index No. 616614/2019 Motion Seq. No. 001
04-27-2021
JENNIFER L. VIGLIOTTI, As Administratrix of the. Estate of Craig A, Vigliotti, Deceased, v. PETER JOHN RUIZ, P.A., KRISTEN O'BRIEN, M.D., SOTIR POLEN, MD.; HARRY STAZEWSKI; M.D., FAMILY MEDICINE AT ISLANDIA, NORTHWELL HEALTH PHYSICIAN PARTNERS, NORTHWELL HEALTH, INC., RAJESW ARA RAO PATCHA, M.D., PC D/B/A HUNTINGTON HEART CENTER, NY CANCER AND BLOOD SPECIALISTS and NORTH SHORE HEMATOLOGY ONCOLOGY ASSOCIATES, Defendant(s). and JENNIFER L. VIGLIOTTI, Individually, Plaintiff(s),
Unpublished Opinion
Motion Submitted: 3/12/2021
PRESENT: Hon, Thomas Rademaker, J,S.C.
Hon. Thomas Rademaker, J.S.C.
The following papers read on this motion:
Notice of Motion/Supporting Exhibits......................................1
Affirmation in Opposition.......................................................2
Reply Affirmation.........................................................3
Defendants, SOTIR PQLEN, MD. and RAJESWARA RAO FATCHA, M.D., PC D/B/A HUNTINGTON HEART CENTER, by their attorneys, FURMAN KORNFELD & BRENNAN LLP, ("Movants") move this court for an order dismissing claims of medical malpractice arising from treatment prior to as time-barred pursuant to GPLR§3211(a)(5) and CPLR § 214-a.
This case sounds in medical malpractice. Plaintiffs commenced this action by summons and complaint dated November 27,2019. On or about May 28, 2020, the Plaintiffs filed an Amended Summons and Complaint.
The moving Defendant, Sotir Polena, through his counsel Furman, Kornfeld &Brennan, LLP, filed an Answer with the Court dated on March 12,2020. The second moving Defendant, also represented by Furman Kornfeld &Brennan, LLP, filed a Verfied Answer to Amended Complaint with the Court on June 26,2020. The remaining Defendants has also filed answers and joinder of issue is complete.
In the case ar bar, the Plaintiffs allege that the Defendants were negligent in failing to diagnose and treatdecedent's cardiac and/or arterial diseases and thereby caused him to suffer a heart attack and wrongful death on February 20, 2018.
The Movants contend that the alleged malpractice occurred from June 2017 through February 20,2018, and that the decedent last treated with the Movants on February 17, 2017. The Movants further contend that the statute of limitations for medical malpractice, lack of informed consent, and loss of consortium expired on or about August 27, 2019.
The Movants contend that the decedent first presented to cardiologist Polema at the Huntington Heart Center for a pre-operative evaluation for oral surgery on June 9, 2016, when it was noted that the decedent was a then 44 year old male with a significant family history of coronary artery disease and hypertension, for which he Was prescribed Toprol XL 25 mg orally daily. Stress tests were performed on June 28, 2016 and July 5, 2016, which Dr. Polena interpreted as a "maximal, normal exercise stress test." The decedent returned for a follow up visit on July 20, 2016, and Dr. Polena noted that decedent was "optimized to undergo low risk surgery."
The Decedent did not return to Huntington Heart Center until a year and a half later on February 17, 2017, in which Dr. Polema recommended daily blood pressure checks, dietary salt reduction, diet and exercise and a follow up in one month. The Decedent did not follow up with Huntington Heart Center, and the February 17, 2017 visit was his last office visit with the Movants.
In opposition to the Movant's motion, the Plaintiffs contend that there was continuous treatment of the Decedent after his February 17,2017 office visit and that Huntington Heart Center continued to treat the decedent up until the time of his death, through the continuous prescription of medications, to wit, Lisinopril, 10 mg, for the cardiac condition which he ultimately died from.
CPLR §214-a sets the statute of limitations for a medical malpractice action at two and a half years from "...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..."
Tn moving for dismissal pursuant to CPLR 3211 (a) (5), a defendant must establish, prima facie, that one or more of the asserted causes of action are time-barred (see 6D Farm Corp, v Carr, 63 A.D.3d 903 [2d Dept 2009]; Santo B. v Roman Catholic Archdiocese of N.Y., 51 A.D.3d 956, 957 [2d Dept 2008]; Matter of Schwartz, 44 A.D.3d 779 [2d Dept 2007]). To meet its burden, a defendant must establish when the causes of action accrued (see Swift v New York Med. Coll., 25 A.D.3d 686 [2d Dept 2006]). Only if the defendant makes such a prima facie showing does the burden then shift to the plaintiff to "aver evidentiary facts establishing that the case falls within an exception to the [s]tatute of [1]imitations" (Savarese v Shatz, 273 A.D.2d 219, 220 [2d Dept 2000] [internal quotation marks omitted]; Swift v New York Med. Coll., 25 A.D.3d 686, 687 [2d Dept 2006]) or that a question of fact exists as to whether an exception applies (see Santo B. v Roman Catholic Archdiocese of N.Y., 51 A.D.3d at 957).
Statutes of Limitation were "designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared" (Telegraphers v Railway Express Agency, 321 U.S. 342, 348-349 [1944]), Other considerations include "promoting] repose by giving security and stability to human affairs" (Wood v Carpenter, 101 U.S. 135, 139 [1879]), judicial economy, discouraging courts from reaching dubious results, recognition of self-reformation by defendants, and the perceived unfairness to applies, or that there is an issue of fact as to whether an exception applies
The Decedent relies upon the continuous treatment doctrine. According to the continuous treatment doctrine, the two and a half year limitations period does not begin to run until the course of treatment for the same injury, illness or condition which is the subject of the malpractice claim has ended. (Gomez v. Katz, 61 A.D.3d 108 [2nd Dept, 2009]).
Under the continuous treatment doctrine, the Limitations period does not begin to ran until the end of the course of treatment if three conditions are met; (I) the patient continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period; (2) the course of treatment was for the same conditions or complaints underlying the plaintiffs medical malpractice claim; and (3) the treatment is continuous (Murray v Charap, 150 A.D.3d 752, 752 (2d Dept 2017])
The continuous treatment rule applies to the period if prescriptions are being issued by the doctor where there is a 'continuing relationship' with the patient" (Forte v Werner, 214 A.D.2d 397, 399, 624 N.Y.S.2d 596 [1995], quoting Sfilloe v Contim, 190 A.D.2d 419, 421, 599 N.Y.S.2d 194 [1993]). The Plaintiff raises a question of fact as to whether there was a degree of medical decision making with respect to the making and filling of the prescriptions at issue, and continuing patient access to these medications and the prescribed dosages without discharging the decedent from care prior to the decedent's death.
Upon careful review of the papers submitted, and their supporting exhibits, the movant's motion to dismiss based upon expiration of the statute of limitations is DENIED.
This foregoing constitutes the Decision and Order of the Court.