John L.A. Lyddane and Barbara D. Goldberg
John L.A. Lyddane and Barbara D. Goldberg ()

The continuous treatment doctrine, like many other changes in the law, was born of difficult facts. The Court of Appeals was faced with an infant’s case against the City of New York where the child had been hospitalized for 16 months, and filed a notice of claim 63 days after discharge. The case had proceeded to verdict and if the strict 90-day limit for notice of claim had been followed, the judgment in favor of the plaintiffs would have been vacated.

Instead, in Borgia v. City of New York, 12 N.Y.2d 151 (1962), the Court of Appeals decided that:

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, the “accrual” comes only at the end of the treatment.

Id. at 155.

The policy reason articulated in support of the change in the law was that it would be “absurd” to require a wronged patient to interrupt corrective care in order to pursue litigation against the caregiver.

Over the course of the past 55 years, the issue has produced many appellate decisions and the principle has been codified in CPLR 214-a, but the doctrine remains essentially unchanged. Litigation has involved distinguishing care which is intermittent from that which is continuous, Davis v. City of New York, 38 N.Y.2d 257 (1975)), and whether the treatment of one provider may be imputed to another, McDermott v. Torre, 56 N.Y.2d 399 (1982). The court has examined the intentions of the parties at specific points in time, Richardson v. Orentreich, 64 N.Y.2d 896 (1985), and the significance of a timely return visit instigated by the patient, Rizk v. Cohen, 73 N.Y.2d 98 (1989), in applying the doctrine to extended out-patient care of adult patients. However, the focus has always remained on determining whether there was treatment which was continuous, justifying the claimed toll of the statute of limitations.

It is the obligation of defense counsel to develop and present the statute of limitations defense from the outset as an affirmative defense set forth in the answer and perhaps expanded upon in a bill of particulars. Authorizations for collateral source records will increase the probability of identifying all medical care providers involved in treatment of the patient in the relevant span of time. The timing of visits and the content of the records of treatment require careful evaluation in preparation for the deposition of the patient, so the effort to identify and obtain copies of the records of contemporaneous treatment has to be a priority.

When the plaintiff is deposed, it will become apparent when the patient or her decision-maker ceased having “continuing trust” in the defendant provider which defines the end of continuous treatment. See O’Donnell v. Siegel, 49 A.D.2d 415 (1st Dept. 2008). The complete records of treatment may provide a basis to have the patient or the patient’s decision-maker acknowledge that there was an early point at which they demonstrated a desire to discontinue or transfer care elsewhere. See Blythe v. City of New York, 119 A.D.2d 615 (2d Dept. 1986). The courts focus on the intent of the patient, which is much better explored at the depositions than left for the summary judgment affidavits or trial. See Rizk, 73 N.Y.2d at 104).

The testimony of the plaintiff at deposition may reveal that there was no perception of treatment for the original condition despite multiple return visits to the doctor. See Massie v. Crawford, 78 N.Y.2d 516 (1991). It is much better to establish this fact at the deposition than to invite the speculation of hired experts as to what the thought process of the patient might have involved. A continuing relationship with the provider or routine periodic health examinations will not satisfy the doctrine’s requirements. Prinz-Schwartz v. Levitan, 17 A.D.3d 175 (1st Dept. 2005). The doctor’s keeping an eye on a precancerous nodule over the course of sporadic discrete routine visits spanning 10 years did not establish continuous treatment. Sinclair v. Cahan, 240 A.D.2d 152 (1st Dept. 1997). Where it can be shown through the plaintiff’s testimony that uninterrupted reliance of the patient on the physician’s advice did not continue, as evidenced by scheduled appointments in the near future, or that further treatment was not explicitly anticipated by both the physician and patient, the statute of limitations will not be tolled. Allende v. NYC Health & Hospitals, 90 N.Y.2d 333 (1997)).

Where the patient has been evaluated on multiple occasions by the health care provider, but cannot show that he believed that further treatment was needed from one visit to the next, there will be no continuous treatment. O’Donnell, 49 A.D.2d 415. Where there is a resumption of treatment rather than its being continuous, the doctrine does not allow for a toll. Siegel v. Wank, 183 A.D.2d 158 (3d Dept. 1992). Where the patient was under the care of a second provider for the infection which complicated his treatment by a first provider, his two contacts with the first provider did not demonstrate an actual course of treatment or that the plaintiff and the first doctor anticipated future treatment. Adams v. Kohan, 105 A.D.3d 880 (2d Dept. 2013). Where the patient disregarded the doctor’s advice and treatment resumed after a break in continuity, there was no toll. Barrella v. Richmond Mem. Hosp., 88 A.D.2d 379 (2d Dept. 1982).

The preparation for the deposition of the defendant is likewise important in the development of the statute of limitations defense. A series of visits in which there was an alleged failure of diagnosis does not allow for treatment, so continuous treatment cannot be found. Schwelnas v. Urological Assoc. of L.I., P.C., 94 A.D.3d 971 (2d Dept. 2012). The doctor may be helpful in establishing that there was no actual course of treatment, denoted by actual ongoing conduct such as surgery, therapy or medications. See Fraumeni v. Oakwood Dental Arts, 108 A.D.3d 495 (2d Dept. 2013)). The doctor’s testimony can certainly assist in distinguishing between a continuing course of treatment and a mere continuing relationship with the patient. See Nykorchuck v. Henriques, 78 N.Y.2d 255 (1991).

Although a lengthy time span between visits is not by itself sufficient to defeat a claim of continuous treatment, the doctor’s testimony regarding how she generally manages the injury in issue would demonstrate the regularity of visits and the modalities of treatment which would support continuous treatment if it has existed. See McGrath v. Winegarten, 2014 NY Misc. Lexis 4350 (Sup. N.Y. 2014). If after a hiatus in treatment the patient has returned to the provider to re-initiate treatment, the continuous nature of the treatment can be fairly disputed. See Grellet v. New York, 118 A.D.2d 141 (2d Dept. 1986). Where the provider has rendered discrete and complete treatment, a subsequent renewal of the doctor/patient relationship does not invoke the doctrine. See Rizk, 73 N.Y.2d at 105).

Once the provider considers the patient’s treatment to have been completed, the statute of limitations may begin to run. This date is generally not found in the records of treatment so it should be established by the deposition testimony. Even then, the doctrine may prevent the running of the statute of limitations where the patient “timely returns” to the provider to seek further treatment of the same condition. See Grellet, 118 A.D.2d at 148. The defendant provider should have sufficient experience with similar patients to shed some light on what constitutes a “timely” return, but this may not be asked by counsel for the plaintiff at the time of the deposition.

While most defense counsel do not routinely question the defendant at her deposition, a limited examination could be beneficial. If the facts of the continuous treatment issue are fully developed at depositions, there is an increased probability that the issue can be determined by the less costly alternative of a summary judgment motion than the more expensive alternative of a full trial. The defense would prefer to have the matter disposed of as a matter of law, particularly since any question of fact warrants determination by a jury. Trying the statute of limitations issue in conjunction with the case in chief places the defendant in the position of appearing to want to prevail before the jury on a technicality.

Clearly a factual sub-issue on a summary judgment motion can be set down for an immediate trial, see Barrella, 88 A.D.2d at 381, and this would appear to promote judicial economy rather than including the isolated issue with many other issues of fact which will require weeks of testimony to resolve. However, experience shows that such hearings are rarely allowed, making it all the more important to develop the continuous treatment defense fully during the course of discovery.