Summary
In Shumway v. DeLaus, 152 A.D.2d 951, 543 N.Y.S.2d 777 (1989), motion for leave to appeal dismissed 75 N.Y.2d 946, 555 N.Y.S.2d 693, 554 N.E.2d 1281 (1990), the Appellate Division of the Supreme Court of New York, Fourth Department, refused to hold that a 2 1/2 year gap in treatment, the length of the medical malpractice limitations period in New York, barred the continuing course of treatment doctrine as a matter of law.
Summary of this case from Fabio v. BellomoOpinion
July 12, 1989
Appeal from the Supreme Court, Monroe County, Curran, J.
Present — Dillon, P.J., Callahan, Green, Pine and Davis, JJ.
Order unanimously affirmed with costs. Memorandum: Although the Second Department has held that a gap in treatment that exceeds the 2 1/2-year period of limitations (see, CPLR 214-a) bars the application of the continuous course of treatment doctrine as a matter of law (see, Curcio v Ippolito, 97 A.D.2d 497, affd 63 N.Y.2d 967; Barrella v Richmond Mem. Hosp., 88 A.D.2d 379; Bennin v Ramapo Gen. Hosp., 72 A.D.2d 736), the Court of Appeals found it unnecessary to adopt that holding (see, Curcio v Ippolito, 63 N.Y.2d 967, 969, supra). We decline to adopt such rule in this department. Instead, we adhere to the principle that "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). Upon application of that principle, plaintiff's averments are sufficient to raise questions of fact. Thus, Supreme Court properly denied defendant's motion for summary judgment.