Opinion
No. 305261/09.
2012-08-10
Nancy PEREZ and Xavier Perez, Plaintiffs, v. Jane M. FITZGERALD, D.C. and Family Chiropractic Care, Defendants.
Sullivan Papain Block, McGrath & Cannavo P.C., New York, Attorney for Plaintiff. Kaufman Borgeest & Ryan, LLP, New York, Attorney for Defendants.
Sullivan Papain Block, McGrath & Cannavo P.C., New York, Attorney for Plaintiff. Kaufman Borgeest & Ryan, LLP, New York, Attorney for Defendants.
KENNETH THOMPSON, J.
Plaintiffs' motion for an Order pursuant to CPLR § 4404(a) setting aside the jury's verdict and increasing the jury's award of $0 as to Plaintiff's future pain and suffering, future medical costs, and co-Plaintiff's loss of his wife's services and Defendants' cross-motion for an Order pursuant to CPLR § 4404(a) setting aside the jury's verdict and dismissing the Complaint on the grounds that Plaintiffs' claims are time-barred and the Court's rulings with respect to the verdict sheet irreparably prejudiced the Defendants are consolidated for Decision herein.
Plaintiff's motion is DENIED as moot.
Defendants' cross-motion is GRANTED.
This matter was tried before this Court from February 7 to February 21, 2012. The jury returned a $400,000.00 award in Plaintiffs' favor for past pain and suffering, and found Defendants 30% liable for failing to refer Plaintiff for an MRI on her neck after a July 7, 2006 examination, which lead to a two-year delay in diagnosing and treating a intramedullary spinal cord tumor. Plaintiffs commenced this action on June 29, 2009.
Defendants argue that Plaintiffs' claim is barred by the two-and-a-half-year statute of limitations for “medical malpractice .” SeeCPLR § 214–a. Plaintiff maintains that: chiropractors are explicitly excluded from § 214–a; it would be unconstitutional to include chiropractors under § 214–a; and, regardless, Plaintiff may rely on the continuous treatment doctrine.
This matter is governed by CPLR § 214–a and Plaintiff has failed to show that she was being continually treated to take advantage of the toll.
Statute of Limitations
An action for medical, dental or podiatric 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 CPLR § 214–a.
Medical Treatment
There is no credence to Plaintiffs' arguments that chiropractors are “expressly omitted from the protections afforded medical physicians, dentists and podiatrists in CPLR § 214–a.” (Pl Aff Opp at ¶ 17.) The Court of Appeals has held that “individuals and entities other than physicians” whose “acts or omissions either constitute medical treatment or bear a substantial relationship to the rendition of medical treatment” are covered by CPLR § 214–a. Karasek v. LaJoie, 92 N.Y.2d 171, 174–75 (citations omitted) (emphasis added); see also Foote v. Picinich, 118 A.D.2d 156 (applying it to a chiropractor). Defendant being a chiropractor is not the sole determination of whether CPLR § 214–a applies “but rather on what [she] did and whether medical treatment was provided.” See Rodriguez ex rel. Estate of Mendez v. Mount Sinai Med. Ctr., 5 Misc.3d 1009A ( citing to Bleiler v. Bodnar, 65 N.Y.2d 65 and Scott v. Uljanov, 74 N.Y.2d 673).
The Court disagrees with Plaintiffs' attempt to classify the failure to refer her for an MRI as a “chiropractic decision, not a medical decision.” (Pl Aff Opp at ¶ 42.) Plaintiff theorizes that Defendant should have ordered an MRI to determine how to further treat her maladies. This scenario “bear[s] a substantial relationship to the rendition of medical treatment.” Plaintiff's expert, Dr. Joseph Verna, testified that he would have ordered an MRI because “I need to see what is going on with this patient as a clinician so that I can make a reasonable medical determination, medical/chiropractic determination for what is the most appropriate treatment for [Plaintiff] due to her specific presentation,” (TT 255:22–25; 256:1–3) and opined that “the worsening of [Plaintiff's] presentation, ... her past medical history, her disc pathologies, her objective findings or neurological deficit required a new MRI to further assess [Plaintiff] to make clinical decisions for her.” ( Id. at 258:22–25; 259:21–25.) See Friedmann v. New York Hospital–Cornell Med. Ctr., 65 AD3d 850, 851 (finding that “where the directions given or treatment received by the patient is in issue, consideration of the professional skill and judgment of the practitioner or facility is required and the theory of medical malpractice applies”); Reardon v. Presbyterian Hosp., 292 A.D.2d 235, 236.
Continuous Treatment
Plaintiff contends that the statute of limitations should be tolled until April 20, 2007, since that was the end of her treatment. The evidence adduced at trial, however, shows that Plaintiff did not intend to undergo additional treatment after July 28, 2006.
[A] patient remains under the “continuous treatment or care” of a physician between the time of the last visit and the next scheduled one where the latter's purpose is to administer ongoing corrective efforts for the same or a related condition. Regardless of the absence of physical or personal contact between them in the interim, where the physician and patient reasonably intend the patient's uninterrupted reliance upon the physician's observation, directions, concern, and responsibility for overseeing the patient's progress, the requirement for continuous care and treatment for the purpose of the Statute of Limitations is certainly satisfied.
Richardson v. Orentreich, 64 N.Y.2d 896, 899.
Where there is a direct physician-patient relationship, continuous treatment exists only when further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past.
Cox v. Kingsboro Medical Group, 88 N.Y.2d 904, 906 (citations omitted). Because a patient who is not aware of the need for further treatment of a condition is not faced with the dilemma that the doctrine is designed to prevent, the primary focus in determining whether the doctrine applies in a given case must remain on the patient. Young v. NYCHHC., 91 N.Y.2d 291, 296 (citations omitted).
Plaintiff began treating with Defendant on February 7, 2005, with complaints of “pain in the low back with radiation to left buttock.” (Pl Aff Op at EX. A.) Plaintiff made thirteen visits to Defendant during February and March 2005, all relating to her lower back. ( Id.) She visited Defendant 37 times during May and August 2005, relating to her neck and back. ( Id.) Plaintiff returned on July 7, 2006, reporting “moderate pain in the neck especially right side and numbness in the bilateral hands.” ( Id.) On July 10, 2006, “complaining of decreased pain in her neck.” ( Id.) On July 19, 2006, “complaining of mild to moderate pain in the right side of the neck.” ( Id.) And on July 24, 2006, “complaining of mild to moderate neck pain.” ( Id.)
Plaintiff was scheduled for a July 28, 2006, appointment, which she missed due to her daughter's sickness. Plaintiff ignored three subsequent attempts by Defendant to reschedule the appointment. See Rizk v. Cohen, 73 N.Y.2d 98, 105 (stating that “[a]llowing continuous treatment to be invoked solely on a doctor-initiated communication might, we fear, encourage silence”). Plaintiff testified that she ceased treating with Defendant at the end of July 2006 because she “just thought that [she] was diagnosed with bulging disc and ... thought that this is the way [she] was going to live, with back problems.” (TT at 138:20–24.) Plaintiff returned for treatment with Defendant on April 20, 2007, “complaining of low back pain of unknown origin approximately 2–3 weeks ago.” ( Id.)
Regardless of Plaintiff's reasons for seeking treatment on April 20, 2007, her actions and testimony indicate that she had no intention of returning to Defendants for treatment after July 2006, did not anticipate returning to Defendants for treatment after July 2006 and was unaware of the need to return to Defendants for treatment after July 2006. Compare with Allende v. NYCHHC, 90 N.Y.2d 333, 339 (finding that “that both plaintiff and the doctors ... expected that she would return for further treatment”) (emphasis added).
The foregoing shall constitute the decision and order of this Court.