Summary
In Kelly, the Fourth Department applied the continuous treatment doctrine to medical care provided in three different prison facilities on the basis that all of the physicians were employed by the State. Claimant's reliance upon Kelly is misplaced, however, since to the extent that Kelly is in conflict with Howard, we decline to follow it.
Summary of this case from Ogle v. StateOpinion
April 5, 1985
Appeal from the Court of Claims, Quigley, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Green and O'Donnell, JJ.
Order reversed, on the law, without costs, motion denied and claim reinstated. Memorandum: Claimant appeals from an order which dismissed as untimely his notice of claim filed March 5, 1982 alleging medical malpractice against the State. In his pro se notice of intention filed on March 5, 1982, claimant stated that "the claim arose on July 1980 at Attica State Prison [where] an inaccurate diagnosis of claimant's eye disease was made. Claimant was transferred to Green Haven State Prison where he is being repeatedly denied appropriate medical attention in this facility's infirmary. Claimant has suffered, is suffering, and will continue to suffer because of the continuous abuse and negligents [ sic] on the part of the medical staff. The items or injuries claimed are as follows: BLINDNESS DUE TO NEGLECTFUL TREATMENT". The notice of claim indicated that the treatment commenced on or about 1980 when he consulted Dr. Downs at Attica "while he was suffering severe pain and blurred eyesight". Eye drops for an allergy of his eyes were prescribed. He was seen periodically thereafter by medical personnel in State prison facilities. In March 1982, claimant was sent to an eye clinic where he was diagnosed as "legally blind due to retinal scarring in both eyes due to choridal vascular disease in both eyes at the macular." While an action for medical malpractice accrues and the Statute of Limitations begins to run on the date of the alleged act of malpractice ( McDermott v. Torre, 56 N.Y.2d 399; Davis v City of New York, 38 N.Y.2d 257, 259; Paciello v. Patel, 83 A.D.2d 73, 75; Starbo v. Ruddy, 66 A.D.2d 950, lv denied 47 N.Y.2d 711), an exception is made where "the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint" ( Borgia v. City of New York, 12 N.Y.2d 151, 155). The "continuous treatment" doctrine tolls the statute until the end of the course of continuous treatment (CPLR 214-a; Richardson v. Orentreich, 64 N.Y.2d 896). Although the original diagnosis of claimant's eye condition was made by the prison doctor at Attica in July 1980, claimant continued to seek medical care and treatment for his eye condition from medical personnel employed by the State at three different prisons between July 1980 and March 1982. Thus under the continuous treatment doctrine, the notice of intention and claim filed in March 1982 were properly within the prescribed statutory period (Court of Claims Act § 10).
All concur, except Hancock, Jr., J.P., who dissents in part, in the following memorandum.
I agree that there should be a reversal but cannot agree with the majority that on this sparse record it can be held, as a matter of law, that the continuous treatment doctrine applies. In my opinion, there are questions of fact on this issue. Whether there has been "continuous treatment for the same illness, injury or condition which gave rise to the * * * omission or failure" (CPLR 214-a) continuing until no more than 90 days prior to March 5, 1982 ( see, Court of Claims Act § 10), should be determined by the Court of Claims after hearing the relevant evidence at trial.
Claimant alleges that he was sent by prison officials on two separate occasions to the Westchester County Ophthalmology Clinic in January and February 1982, dates which would be within 90 days of the filing of the notice of claim on March 5, 1982. However, there are no entries in the hospital or clinic records supporting this allegation or indicating the purpose of these visits. For these visits to the clinic, if they occurred, to constitute "continuous treatment" under CPLR 214-a, it must be established that the visits were for some purpose other than to have the "condition checked" ( see, McDermott v. Torre, 56 N.Y.2d 399, 405). Moreover, it must be shown that there were no time gaps between the treatments in excess of the 90-day Statute of Limitations ( see, Curcio v. Ippolito, 97 A.D.2d 497).
If it is shown that claimant did receive treatment for the eye problem which would qualify under CPLR 214-a in light of McDermott v. Torre ( supra) and Curcio v. Ippolito ( supra) there is a further question: whether such treatment (which the record shows was rendered either in prison clinics different from the prison clinic where the first treatment was given or in an ophthalmology clinic operated by Westchester County) was performed by health care workers who were in "relevant association with the [initial treating] physician" ( McDermott v Torre, supra, p 408) so as to form a sufficient basis for application of the continuous care doctrine ( see generally, Marabello v. City of New York, 99 A.D.2d 133, appeal dismissed 62 N.Y.2d 942).
The question of timeliness of the filing of the claim should be determined as an issue on the trial or, if the court finds it appropriate, as a separate issue in advance of trial.