Two Cases This Month Where Doctors’ Failure to Timely and Properly Treat Immunizes Them From Suit

Theres much talk these days about the proposed $250,000.00 cap on recoveries for pain and suffering in medical malpractice cases. I’ve seen a television advertisement crowing how medical malpractice reform will enhance patient safety (without mentioning the proposed cap), when common sense fails to explain how reducing a doctors or hospitals potential liability will make them act with more care towards the patient. At the same time, the proponents of the cap show no interest in fixing one of the most unfair aspects of current law – the absence of an extension of the 2-1/2 year statute of limitations that applies to medical malpractice when the victim of medical malpractice did not discover that there had been malpractice until after the 2-1/2 year period has elapsed. Two very recent decisions of the Appellate Division, Second Department illustrate the point. In both cases, the issue was whether the statute of limitations was tolled by the continuous treatment doctrine. In order to receive the benefit of that doctrine, a plaintiff is required to demonstrate that there was a course of treatment, that it was continuous, and the treatment was for the condition or complaint underlying the claim of malpractice. It is not enough that the plaintiff and the defendant had a continuing doctor-patient relationship both must view the treatment rendered as a continuing course of treatment regarding the condition that is eventually diagnosed. In Stewart v. Cohen, 2010-02135, 2011 WL 833961 (N.Y. App. Div. Mar. 8, 2011), the plaintiff’s decedent began seeing the defendant doctor, a family practitioner, in May 1998. During the course of the next several years, she returned to the defendant doctor several times with various ailments, some of which concerned breathing problems. Eventually, in April 2001, she was diagnosed with lung cancer by another doctor, and she died in November 2001. The plaintiff, the administrator of the patient’s estate, commenced this action on November 5, 2003. In Udell v. Naghavi, 2010-06230, 2011 WL 923983 (N.Y. App. Div. Mar. 15, 2011), blood tests taken of the 50-year old plaintiff in July 2005 revealed a prostate specific antigen (PSA) level of 3.84 and a rectal examination was negative. The plaintiff returned to the office again in May 2006 because of lumbar spine symptoms and was examined by the defendant doctor. No blood test to determine the plaintiff’s PSA level was done at that time and no rectal examination was performed. However, blood work was done on May 10, 2006, and the doctors physicians assistant allegedly reviewed the laboratory report that was prepared on May 11, 2006. In 2007, another physician diagnosed the plaintiff with advanced prostate cancer and, on May 27, 2008, the plaintiff and his wife, suing derivatively, commenced the action. In both cases the Second Department held that the statute of limitations was a bar to at least some of the suit because the treatment rendered for the discreet problems did not constitute ongoing efforts to treat the conditions that eventually were eventually diagnosed as lung and prostate cancer. Put differently, the plaintiffs were late because by the time another physician made the diagnosis of cancer, more than 2-1/2 years had passed since the first physician allegedly failed to do so. The defendant doctors were protected because they failed to render a course of treatment when they allegedly should have. Courts have held that a failure to institute a course of treatment does not create a course of continuous treatment so as to toll the statute of limitations. No doubt we will continue to see these unfair results unless the law is changed. But at this moment the legislatures (and certainly Governor Andrew M. Cuomos) is more concerned about protecting the wrongdoers than helping their victims receive fair and reasonable compensation for the damage wrought. The lawyers at Levine & Slavit have decades of experience handling personal injury claims including those involving medical malpractice. For 50 years spanning 3 generations, we have obtained results for satisfied clients. We have offices in Manhattan and Long Island, handling cases in New York City, the Bronx, Brooklyn, Queens and surrounding areas. To learn more, watch our videos.

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