The Appellate Division, First Department, at 27 Madison Ave. NYLJ/Rick Kopstein

A blind woman’s medical malpractice action against her doctor cannot be dismissed as time-barred because she has raised factual issues about whether the applicable statute of limitations was tolled under the continuous treatment doctrine, a Manhattan appeals court has ruled.

The doctrine, considered one of the most effective means of overcoming the statute of limitations in medical malpractice cases, provides that, in actions based on a failure to diagnose a condition, the limitations period is tolled as long as the symptoms being treated indicate the condition’s existence.

In a lawsuit filed March 5, 2010, plaintiff Michelle Lewis claimed that Frederick Rutkovsky, her primary care doctor, failed to diagnose a meningioma—a benign brain tumor—despite her visiting him intermittently between April 1998 and Sept. 5, 2007, and at times complaining of migraine headaches, blurred vision and related symptoms.

Lewis ultimately had a frontal parasagittal craniotomy—surgery on the skull—and suffered loss of vision, according to the court.

A majority panel of the Appellate Division, First Department, decided in Lewis v. Rutkovsky, 102947/10, that despite the plaintiff filing her lawsuit more than two and a half years after her last visit to Rutkovsky, she may still proceed because she’s raised triable issues of fact about whether, under the continuous treatment doctrine, the limitations period should be tolled. New York has a two-and-a-half-year statute of limitations for medical malpractice actions.

The panel affirmed the 2015 decision of Manhattan Supreme Court Justice Joan Lobis. Lobis had denied summary judgment to Rutkovsky and LHHN Medical P.C., the medical group co-defendant.

“Read in the light most favorable to plaintiff, the record contains issues of fact as to whether from March 1999 until at least September 5, 2007 there was continuity of treatment for symptoms—namely, recurring and sometimes severe headaches—that were traceable to plaintiff’s meningioma,” the majority panel of Justices Karla Moskowitz, Judith Gische and Barbara Kapnick wrote in an unsigned opinion. “If so, the course of treatment would render plaintiff’s action timely, as the statute of limitations would be tolled between March 1999 and September 2007.”

“An issue of fact … is all that the law requires at this stage,” they also noted in the Aug. 29 decision.

But Justice Peter Tom, in a lengthy dissent, disagreed. He wrote in part that “plaintiff’s medical records demonstrate only sporadic complaints of headache and/or vision issues over the course of almost a decade, and there is no evidence to show that both Dr. Rutkovsky and plaintiff ‘explicitly anticipated’ that Dr. Rutkovsky would treat plaintiff for a specific condition.”

Much of the disconnect between the majority and Tom centered on whether a continuous, regular treatment for Lewis’ headaches occurred. In disputing that point, the majority and dissent diverged, to a marked degree, on how the relevant case law should be read and understood.

“Our dissenting colleague … assert[s] that there was no evidence of regular appointments or ongoing treatment for plaintiff’s headache-related complaints,” the majority wrote. But that is “a red herring,” the justices continued, because “it has no bearing on whether the record contains evidence that the continuous treatment doctrine may apply.

“The case law contains no requirement that a plaintiff have attended ‘regular’ appointments in the sense that the appointments were scheduled for the sole purpose of treating the allegedly misdiagnosed condition,” the justices said. “Rather, the inquiry centers on whether the treated symptoms indicated the presence of the condition that was not properly diagnosed—here, a meningioma that gave rise to plaintiff’s severe headaches and partial loss of vision, both of which Dr. Rutkovsky undertook to treat by, among other things, prescribing reading glasses.”

The panel also tackled Tom’s purported insistence that, as the majority quoted Tom, the “plaintiff does not connect … purported visits between January and June 2007 to her documented visit in September 2007, or otherwise raise an issue regarding a continuing course of treatment for headaches.”

“We disagree with this statement because … plaintiff did, in fact, testify that she told Dr. Rutkovsky about her headaches during these once-monthly visits,” the majority wrote. “Specifically, she testified that she was ‘at his office [once a month] telling him about [] headaches [that] were getting more and more extreme’ such that she could not get out of bed, and were not alleviated by Ibuprofen. This testimony … is quite sufficient to raise an issue of fact.”

But Tom countered, point after point, in more than five pages. He noted, for instance, yearslong gaps between Lewis’ headache complaints to Rutkovsky, and wrote, “In sum, plaintiff complained of headaches and/or vision problems on five separate occasions with long gaps in between during approximately 30 visits to Dr. Rutkovsky and over a period of close to a decade. Clearly, this set of circumstances cannot support a continuous course of treatment for plaintiff’s sporadic complaints of headache.”

Tom also wrote, “Contrary to the majority’s reading of the relevant case law, while the ‘determination as to whether continuous treatment exists [] must focus on the patient’, the patient is required to make timely return visits related to the same original condition or complaint,” quoting Rizk v. Cohen, 73 N.Y.2d 98, 104 (1989) and citing McDermott v. Torre, 56 N.Y.2d 399, 405-06 (1982).

“Thus,” he added, “while we must look at ‘whether the patient believed that further treatment was necessary, and whether [she] sought such treatment’, here, the medical records reflect plaintiff did not consistently seek treatment for headaches,” quoting Devadas v Niksarli, 120 A.D.3d 1000, 1006 (1st Dept. 2014).

Nor does evidence support the claim that Rutkovsky was consistently treating or monitoring Lewis for specific symptoms linked to meningioma, Tom said.

Eldar Mayouhas, an attorney formerly with Gordon & Silber in Manhattan, represented Rutkovsky, but said he is no longer handling the case. Gordon & Silber did not return a call seeking comment.

David Beatty, a lawyer formerly with Kaufman Borgeest & Ryan in Manhattan, represented LHHN Medical. He could not be reached for comment.

Annette Hasapidis, of Law Offices of Annette Hasapidis in White Plains, represented Lewis. “We are pleased that the court took the time to address and resolve the continuing treatment claim in great detail,” she said. “This determination provides significant guidance to litigants about the weight to be given to a plaintiff’s deposition testimony in the summary judgment proceeding, particularly when there are contradictory medical records.”