Barclay Damon
Barclay Damon

Legal Alert

Consultation with Another Physician Does Not Bar Continuous Treatment Doctrine

The Second Department recently held that a plaintiff’s consultation with another physician does not necessarily mean that the plaintiff lost his or her continuing trust and confidence in the defendant physician. As a result, such a consultation does not preclude a plaintiff from availing him or herself of the continuous treatment doctrine, staying the statute of limitations.

In Piro v. Macura, et al., 92 A.D.3d 658 (2d Dep’t 2012), the Appellate Division reversed the order of the Supreme Court, Kings County, which dismissed the plaintiff’s complaint against the defendant physician based upon the application of the two year and six month statute of limitations in a medical malpractice action and finding that the continuous treatment doctrine did not apply. The trial court did not evaluate the portion of the defendant’s summary judgment motion seeking judgment on the merits. The Appellate Division remanded for consideration on this part of defendant’s motion.

In May 2003, the plaintiff met with defendant physician to be evaluated for weight loss surgery and treatment of an umbilical hernia. The defendant recommended that plaintiff undergo a laparoscopic band to treat his obesity. The defendant also suggested repair of the plaintiff’s umbilical hernia. Plaintiff underwent the laparoscopic band procedure on November 12, 2003, and had the hernia repaired on May 7, 2004. He saw the defendant several times between May 2007 and December 7, 2004. During this time, the defendant adjusted the laparoscopic band and treated the hernia wound, which had become infected. On November 11, 2004, the plaintiff began seeing another surgeon for treatment of his hernia wound. Although the defendant expected to see the plaintiff after four weeks for a follow-up visit on December 7, 2004, the plaintiff did not return to the defendant’s office again until March 29, 2005. During this visit, the defendant examined the hernia wound, and although it was no longer infected, the wound remained open, and defendant decided not to adjust the laparoscopic band.

The plaintiff commenced an action on June 13, 2007, alleging that the defendant was negligent in treating his hernia wound infection. Following discovery, the defendant moved for summary judgment on the ground that the complaint was time-barred as well as on the merits. The trial court granted the branch of defendant’s motion for summary judgment dismissing the complaint as time-barred. It did not reach a determination on the portion of defendant’s motion seeking judgment on the merits.

In its decision, the Appellate Division, Second Department, noted that an action alleging medical malpractice “must be commenced within two years and six months of 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.” See CPLR 214-a. Under the continuous treatment doctrine, “the time in which to bring a malpractice action is stayed when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the original condition or complaint.” McDermott v. Torre, 56 N.Y.2d 399 (1982), quoting Borgia v. City of New York, 12 N.Y.2d 151 (1962).

The Court found that although the action was commenced more than two years and six months after the last treatment for the umbilical hernia on December 7, 2004, the fact that the plaintiff consulted with another physician for treatment of the same condition “does not necessarily establish that he lost his continuing trust and confidence in the defendant”, especially since the plaintiff continued to visit the defendant. Piro v. Macura, 58 A.D.2d at 709, quoting Marmol v. Green, 7 A.D.3d 682 (2d Dep’t 2004). Accordingly, the Court reversed the order of the trial court, and held that the motion for summary judgment dismissing the complaint as time-barred should have been denied.

The Court’s decision in Piro potentially broadens the application of the continuous treatment doctrine in medical malpractice actions. Moreover, it serves as a warning to physicians that a patient’s treatment with another medical provider will not necessarily bar the application of the continuous treatment doctrine.

For more information. Please contact David Cabaniss, Chair of the Professional Liability Practice Area at (518) 429-4279 or by e-mail at