The nature of the physician-patient relationship has complicated the question of when a malpractice claim accrues for statute of limitations purposes. This issue was addressed in Borgia v. City of New York, 12 N.Y.2d 151 (1962), by a divided Court of Appeals which extended the accrual date of the cause of action for a 15-month-old infant whose notice of claim was filed late after he had been admitted to the hospital for a scalding injury and had been injured on the first day of treatment and several other points in a 16-month hospitalization. On a pure policy basis, the court moved the accrual date of the claim from the date of the malpractice to the last date of continuous treatment for the same condition in that decision. The court stated as a matter of policy that it was “absurd” to require a patient to interrupt corrective efforts in order to commence timely legal proceedings. Id. at 156. In 1975, this decision was codified in CPLR §214-a, which extends accrual to the date of the last treatment for the condition, and explicitly prevents revival of the statute of limitations by the patient later initiating an examination to ascertain the state of the condition.
The year 1991 saw the Court of Appeals refine the application of its policy on continuous treatment. Nykorchuck v. Henriques, 78 N.Y.2d 255 (1991) reaffirmed the policy of maintaining the physician-patient relationship with the rationale that the most efficacious medical care would be obtained when the attending physician remains on a case from onset to cure. Id. at 258. In Massie v. Crawford, 78 N.Y.2d 516 (1991), the court found that the patient’s subsequent visits did not involve therapy to correct a medical condition. In Cooper v. Kaplan, 78 N.Y.2d 1103 (1991), the court decided that the subsequent physician-patient interaction did not rise to the level of continuous treatment. In all three cases, the court held that the policy justification for postponing accrual of the claim did not exist despite the continued relationship between the parties.
In 1995, the court revisited the issue in Ganess v. City of New York, 85 N.Y.2d 733 (1995), a case in which a child had sustained a brachial plexus injury at birth and was thereafter treated in the City Hospital clinic system. The court found that continuous treatment did not render the claim timely, and commented in dicta, with a strong concurring opinion by Judge Titone, that extending the accrual date for a claim against the mother’s obstetrician by virtue of the pediatric treatment rendered to her son did not fit the policy behind the doctrine.
A case with the element of imputed care for an adult patient in the private sector was decided by the court a year later. In Cox v. Kingsboro Medical Center, 88 N.Y.2d 904 (1996), the claim was disallowed because there was no showing that both physician and patient “explicitly anticipated” that the doctor would continue to treat the patient. On that occasion the court specifically found that for the purpose of the continuous treatment doctrine there was no evidence to suggest that the care rendered by other members of the defendant’s group should be imputed to the defendant doctor to extend the date of the accrual of the claim.
After another year, the court again faced the imputed care issue, addressing the application of the policy behind the continuous treatment doctrine to the claim that treatment by colleagues of the defendant should defer accrual. In deciding Allende v. New York City H&HC, 90 N.Y.2d 333 (1997), the court reversed the Appellate Division and dismissed a complaint which had produced a seven-figure verdict. The adult plaintiff in that case had lost faith in one group of doctors and had transferred her care to another group within the same hospital system. The court ruled that imputing the care of the second group to the first group in order to delay accrual of the claim did not comport with the policy behind the continuous treatment doctrine. There was no “uninterrupted reliance” or evidence of continuing reliance by the patient on the first group, and no agency relationship between the two groups simply because they worked in the same hospital system. The relationship among doctors working in the same system, or even the same hospital, does not present the risk of destroying the doctor-patient relationship which the policy seeks to preserve. See also Meath v. Mishrick, 68 N.Y.2d 992 (1986).
In Young v. New York City H&HC, 91 N.Y.2d 291 (1998), a particularly unfortunate fact pattern of a patient whose diagnosis of breast cancer was delayed by the mishandling of her mammogram results reached the court on the continuous treatment issue. If the claim accrued at the time of the mammography, it was time-barred. The plaintiff argued that uninterrupted treatment tolled the statute of limitations, but neither the primary doctor nor the patient knew that the mammogram had yielded a positive result. The lower court dismissed the claim finding that a passive failure to disclose was not a continuing wrong. The Appellate Division reversed holding that, although there was no overt ongoing treatment, the doctors had intended to treat the patient and she was never explicitly told that she did not need to return for treatment. The Court of Appeals reversed the Appellate Division and reinstated the order of dismissal. The court pointed out that the failure to make a diagnosis and commence a course of treatment does not constitute a “course of treatment.” Since the patient was never faced with the dilemma of having to commence legal action during corrective treatment, and since the policy reasons underlying the toll were not served, the toll was inapplicable. Id. at 297.
The court was again presented with a case involving alleged obstetrical negligence resulting in a child’s brachial plexus injury at birth in the case of Plummer v. New York City H&HC, 98 N.Y.2d 263 (2002). Contrary to the 1995 ruling in Ganess, supra, a divided Appellate Division had affirmed the lower court’s denial of the defendant’s motion for summary judgment, apparently allowing the toll to extend to subsequent care rendered by the pediatric specialists affiliated with the hospital defendant. Although the issues of continuous care by an institution and imputed treatment had been addressed in the opinions of the Appellate Division, the Court of Appeals did not reach those issues. Instead, both lower courts were reversed and the complaint was dismissed based on the court’s analysis of a gap in treatment; the infant plaintiff was less than five years of age and the mother and infant briefly moved to Miami, together with several missed appointments while they were in New York. The court held that deposition testimony of the mother to the effect that she intended for the treatment at the defendant hospital to continue and her contention that the child continued to appear for regularly scheduled visits was insufficient to rebut record evidence to the contrary.
Most recently the court addressed the policy-based approach to the continuous treatment doctrine in Lohnas v. Luzi, 30 N.Y.3d 752 (2018). Here again there was disagreement both at the Appellate Division level and in the Court of Appeals as to how the policy should be applied, but it is clear that both the majority and the dissent placed continued reliance on the basic policy articulated in Borgia in determining the point in time at which a malpractice claim accrues. The sharp divide in the analysis between the majority and the dissent in the Court of Appeals serves as it usually does to sharpen the focus on how policy is applied to the facts of a case in point. The majority opinion is mostly a brief repudiation of the dissent’s comprehensive discussion of the application of the Borgia criteria to the facts of the case at bar. The majority opinion reflects that its approach was to employ the criteria for a summary judgment motion as to whether there was a question of fact regarding ongoing treatment of a medical condition. The dissent focuses upon an analysis of the precedent on application of the policy of Borgia. The single point of agreement seems to be that the policy considerations articulated by the court, before and after codification in CPLR §214-a, have remained the same since the court first spoke to the issue in 1962.
On this stable platform of the courts’ approach to continuous treatment, the role of the defense attorney is easily defined. It is often clear from the complaint that the claims may involve events which transpired more than two and a half years before the filing date. However, the determination of what the relevant condition of the patient was at any given time, what in a course of physician-patient interaction constituted treatment, whether that treatment was for the relevant condition, and whether that treatment was continuous, are all fact-specific determinations, any one of which could become the point upon which the case will be determined. When and how to address those points will influence the success of the statute of limitations defense.
This article is also on Law.com: A Consistent Policy Approach to Continuous Treatment