Darlene M. Lohnas, Respondent,v.Frank A. Luzi, Jr., M.D. et al., Appellants.BriefN.Y.January 3, 20180 0 To be Argued by: TAMSIN J. HAGER, ESQ. Time Requested for Argument: (15 Minutes) STATE OF NEW YORK Court of Appeals APL-2016-00186. DARLENE M. LOHNAS, Plaintiff, vs. FRANK A. LUZI, JR., M.D., and NORTHTOWNS ORTHOPEDICS, P.C., Defendants. Appellate Division Docket Number: CA 15-00195. (Appeal No. 1.) DARLENE M. LOHNAS, Plaintiff-Respondent, vs. FRANK A. LUZI, JR., M.D., and NORTHTOWNS ORTHOPEDICS, P.C., Defendants-Appellants. Appellate Division Docket Number: CA 15-00398. (Appeal No. 2.) Erie County Index No.: 2008-010850. BRIEF FOR DEFENDANTS-APPELLANTS FRANK A. LUZI, JR., M.D. and NORTHTOWNS ORTHOPEDICS, P.C. THE TARANTINO LAW FIRM, LLP Attorneys for Defendants-Appellants 1500 Rand Building 14 Lafayette Square Buffalo, New York 14203 Telephone: (716) 849-6500 Facsimile: (716) 849-6503 TAMSIN J. HAGER, ESQ. Of Counsel BATAVIA LEGAL PRINTING, INC. Telephone (866) 768-2100 DISCLOSURE STATEMENT Pursuant to Rule 500.1(f) This brief is submitted on behalf of defendants Frank A. Luzi, Jr., M.D., and Northtowns Orthopedics, P.C., a professional corporation. North towns Orthopedics, P .C., is a sole P .C., with no parents, subsidiaries or affiliates. TABLE OF CONTENTS Table of Cases and Authorities .......................................... iii Preliminary Statement ................................................ 1 Statement of Questions Presente9 ....................................... 4 Statement of Facts .................................................... 5 A. Commencementofthe Action ................................. 5 B. Allegations . . . . . . . . . . . . . . . . ............................... 5 C. Medical Events ............................................ 6 1. January 19, 1999 Humeral Head Surgery and Related Visits .. ' .................................... 6 u. January 3, 2002 Rotator Cuff Surgery and Related Visits ........................................ 7 iii. September 5, 2003 Office Visit ............................. 8 iv. Thirty-Two Month Gap .................................. 9 v. April28, 2006 Office Visit and After ....................... .1 0 D. Motions, Orders, and Appeals ................................. 11 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 POINT I: ALLEGATIONS BASED ON CONDUCT BEFORE MARCH 30,2006, ARE TIME-BARRED ....................... 12 POINT II: THERE WAS NO CONTINUOUS TREATMENT AS OF THE SEPTEMBER 5, 2003 OFFICE VISIT, WHICH WAS FOR A DIFFERENT COMPLAINT ................................. 13 POINT III: THE CONTINUOUS TREATMENT DOCTRINE DOES NOT APPLY SINCE AS OF SEPTEMBER 5, 2003, THERE WAS NO EXPLICITLY ANTICIPATED APPOINTMENT OR TREATMENT .......................... 16 POINT IV: THE CONTINUOUS TREATMENT DOCTRINE DOES NOT APPLY SINCE PLAINTIFF LACKED CONTINUING TRUST IN DR. LUZI DURING HER LONG HIATUS FROM HIS CARE ............. 19 POINT V: THE CONTINUOUS TREATMENT DOCTRINE DOES NOT APPLY SINCE THE PLAINTIFF DID NOT INITIATE A TIMELY RETURN VISIT ...... ~ ................. 24 POINT VI: DEFENDANTS ARE ENTITLED TO PARTIAL SUMMARY JUDGMENT ................................... 28 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 -11- TABLE OF CASES AND AUTHORITIES Cases: Allende v. New York City Health Hasps. Corp., 90 NY2d 333 (1997) ..................................... 19, 20, 21,23 Alvarez v. Prospect Hasp., 68 NY2d 320 (1986) ................................................. 29 Barrel/a v. Richmond Memorial Hasp., 88 AD2d 379 (2nd Dept. 1982) ........................... 20, 21, 22, 23, 25 Bennin v. Ramapa General Hasp., 72 AD2d 736 (2nd Dept. 1979) . . . . . . . . . . . . . ........................ 25 Bulger v. Nassau County Medical Center, 266 AD2d 212 (2nd Dept. 1999) ...................................... 25 Curcio v. Ippolito, 97 AD2d 497 (2nd Dept. 1983), aff'd 63 NY2d 967 (1984) ........................................ 25, 26, 27 Dougherty v. Kinard, 215 AD2d 521 (2nd Dept. 1995) ..................................... 29 Duffy v. Horton Memorial Hospital, 66 NY2d 473 (1985) .............................................. 27 Eagleston v. Mt. Sinai Medical Center, 144 AD2d 427 (2nd Dept. 1998), appeal denied 74 NY2d 601 (1989) ..... ~ ........................................ 25 Gomez v. Katz, 61 AD3d 108 (2nd Dept. 2009) .................................. 13, 14 -111- Marlowe v. E.!. DuPont deNemours & Co., 112 AD2d 769 (4th Dept. 1985) .................................... 14 Massie v. Crawford, 78 NY2d 516, 519 ( 1991 ), rearg. denied 79 NY2d 978 (1992) .......................................... 22, 25 McDermott v. Torre, 56 NY2d 399 (1982) ...................................... 13, 14, 19,26 Merriman v. Sherwood, 204 AD2d 998 (4th Dept. 1994) ..................................... 13 Renda v. Frazer, 75 AD2d 490 (4th Dept. 1980) ..................................... 25 Richardson v. Orentreich, 64 NY2d 896 (1985) ....................................... 16, 17, 20 Rizk v. Cohen, 73 NY2d 98 (1989) ............................................. 20 Sherry v. Queens Kidney Center, 117 AD2d 663 (2nd Dept. 1986) ..................................... 25 Shumway v. DeLaus, 152 AD2d 951 (4th Dept. 1989), appeal dismissed 75 NY2d 946 (4th Dept. 1989) ...................................... 25 Zuckerman v. City of New York, 49 NY2d 557, 562 (1980) ......................................... 29 -IV- Statutes: N.Y.C.P.L.R. §214-a ............................................... 12, 13 N.Y.C.P.L.R. §3212 .................................................. 29 N.Y.C.P.L.R §5602(b)(1) .............................................. 3 -v- PRELIMINARY STATEMENT This action arises from a left shoulder surgery performed eighteen years ago, on January 19, 1999. On that date, defendant orthopedic surgeon Frank A. Luzi, Jr., M.D., ofNorthtowns Orthopedics, P.C., performed a hemiarthroplasty surgery on plaintiff Darlene Lohnas 's left shoulder, replacing her native humeral head with a metal one. On September 30, 2008, nearly ten years after that surgery, the plaintiff commenced this medical malpractice action alleging that Dr. Luzi negligently placed the humeral head on January 19, 1999, and negligently performed a rotator cuff repair surgery on her left shoulder on January 3, 2002. Based on the commencement date, any and all allegations against the defendants arising from care and treatment before March 30, 2006, are time-barred by the two-and-a-half year medical malpractice statute of limitations. To avoid the statute of limitations, the plaintiff invokes both the continuous treatment and equitable estoppel doctrines. The trial court denied the defendants' motjons for partial summary judgment based on the statute oflimitations, agreeing with the plaintiff that triable issues of fact exist as to the application of both the continuous treatment and equitable estoppel doctrines. The defendants appealed, arguing that those doctrines do not apply as a matter of law. By Memorandum and Order entered June 17, 2016, the Appellate Division, Fourth Department held, with one justice dissenting,·that triable issues of fact exist as to whether the continuous treatment doctrine applies. The Appellate Division unanimously held, however, that the equitable estoppel doctrine does not apply as a matter of law. By Order entered September 30, 2016, the Appellate Division granted defendants' motion for leave to appeal to the Court of Appeals, finding that a question of law has arisen, and certifying the following question: Was the order of this Court entered June 17, 2016, properly made? The defendants argue on this appeal that the continuous treatment doctrine does not apply, as a matter of law, and that no triable issues of fact exist preventing partial summary judgment. The plaintiffs care and treatment by the defendants was characterized by two surgeries, and the related course of treatment for each, and repeated breaks from his care. Any continuous treatment was broken at the September 5, 2003, office visit, which was for a different complaint than the previous visit, seventeen months before. Since no future appointment was scheduled at the September 2003 visit, and no future care was explicitly anticipated by both the plaintiff and the physician after this visit, there was no continuous treatment going forward. The plaintiff did not return to the defendants until thirty-two months later, during vvhich time she was not under a 2 course of treatment and did not have the requisite trust and confidence in her physician that underlies the continuous treatment doctrine. The plaintiffs long gap in treatment, combined with the fact that she had no contact with Dr. Luzi or his office during it, had no future scheduled appointment as of the September 2003 visit, and chose not to return to him during this time, supports that there was no continuous treatment, as a matter of law. This Court has jurisdiction to review the questions of law raised in this appeal under CPLR §5602(b )(1 ). Important questions of law have arisen as to the application of the continuous treatment doctrine, and this Court's ruling will provide helpful guidance. Those questions of law are outlined below under "Statement of Questions Presented." Those questions of law have been preserved for the Court's review in the record, specifically at R61-62, 1245-1255, and 1294-1304. The defendan~s request that this Court reverse the Appellate Division's decision insofar as it found that triable issues of fact exist and, in doing so, hold that the continuous treatment doctrine does not apply as a matter of law. Upon so holding, the defendants' partial summary judgment motion must be granted. 3 STATEMENT OF QUESTIONS PRESENTED Was the Order of the Appellate Division properly made? Answer: No. Is continuous treatment broken where the patient returns only for a "check" of her condition after being pushed against a wall and not for a problem related to her previous visit? Answer below: Not addressed. Is continuous treatment broken where the patient is to return only "as needed" and has no future scheduled appointment, and no future treatment is explicitly anticipated by both plaintiff and physician? Answer below: No. Is continuous treatment broken where the patient has lost trust and confidence in her physician, is "discouraged," does not want to return to him despite continued complaints, and chooses not to return to him? Answer below: No. Is continuous treatment broken where the gap in treatment exceeds the length of the statute of limitations? Answer below: No. Is continuous treatment broken where the plaintiff fails to instigate a timely return visit to her physician, and has no contacts with him during a long hiatus from care and treatment, under the facts presented in this action? Answer below: Not addressed. 4 STATEMENT OF FACTS A. Commencement of the Action The plaintiff commenced this action on September 30, 2008, by filing a summons with notice in the Erie County Clerk's Office. (R29-31 ). The plaintiff filed a complaint on February 11, 2009. (R32-38). The defendants' answer denied malpractice and asserted an affirmative defense ofthe statute of limitations. (R39- 40). B. Allegations The plaintiff alleges that the defendants committed medical malpractice by incorrectly inserting a prosthetic humeral head at ninety degrees retroversion in her left shoulder at surgery on January 19, 1999; in failing to diagnose the excessive retroversion; and in using a prosthetic humeral head that was too big and positioned too high or proud. (R36-37, 86-87, 97-98). She also alleges that the defendants negligently performed rotator cuff surgery on her left shoulder on January 3, 2002. (R86-87). She alleges that Northtowns Orthopedics is vicariously liable for Dr. Luzi. (R88). The dates of alleges negligence are January 19, 1999, to May 4, 2006. (R87 at ~~3-4). 5 C. Medical Events i. January 19, 1999 Humeral Head Surgery and Related Visits The plaintiff treated with Dr. Luzi for a course of treatment involving surgery on January 19, 1999, to implant a prosthetic humeral head in her left shoulder. She had a history of left shoulder injuries, physical therapy, and worsening of her shoulder, and first saw Dr. Luzi on December 15, 1998, for left shoulder complaints. (R180-181 ). X-rays showed, among other things, degenerative arthritis and AC joint degeneration. (R181). Dr. Luzi ordered an MRI which showed severe rotator cuff attenuation and moderately severe degenerative arthritic changes. (R212). He recommended a left shoulder replacement surgery. (R181 ). Lockport MRI destroyed· her December 22, 1998 MRI in the normal course of business, after seven years. (R297). On January 19, 1999, Dr. Luzi performed the shoulder surgery, replacing the plaintiffs native humeral head with a metal one. (R186-188, 303 at ~7). The humeral head is the "ball" of the shoulder joint at the top of the humerus, or upper arm bone. (R303-304 at ~7). Retroversion refers to the direction the "ball" or humeral head faces in relation to the humerus. (R304-305 at ~~7 and 9). X-rays were taken at Millard Fillmore Suburban Hospital both before and after the surgery; the immediate post- operative x-ray showed the prosthesis in good position. (R213-214). Millard Fillmore 6 Suburban Hospital destroyed these x-rays in the normal course of business, after seven years. (R298.). Dr. Luzi saw the plaintiff for post-operative visits on January 26, 1999; February 23, 1999; April6, 1999; and June 15, 1999. (R173-176, 179). Dr. Luzi next saw the plaintiff on January 21,'2000, one year post-surgery. (R177 -178). She reported that she was better than before the surgery a majority of the time, though she had some discomfort with weather changes and lacked full range of motion. (R1 77). At her deposition, the plaintiff agreed the pain was probably better than it was pre-operatively and that the constant achiness she had before surgery was gone. (R512-513). Dr. Luzi confirmed by x-ray the satisfactory position of the component. (R206). Dr. Luzi was to see the plaintiff"as needed." (R177). No future appointment was scheduled. The plaintiff did not return to see Dr. Luzi for nineteen months. ii. January 3, 2002 Rotator Cuff Surgery and Related Visits On August 21, 2001, the plaintiff returned to Dr. Luzi, for a course of treatment leading to a rotator cuff surgery followed by post-operative visits. On August 21, she reported having done fairly well until a couple of months ago. (R1 70-171 ). She complained of lost motion and increased left shoulder pain. (R1 70). Dr. Luzi confirmed by x-ray satisfactory component fixation. (R204). He sent her for aCT scan to assess possible increased glenoid wear. (R170). The glenoid is the part of the 7 scapula against which the humeral head abuts. (R305 at ,-riO). The August 23, 2001 CT scan suggested a rotator cuff tear with degenerative changes in the left AC joint. (R21 0). Eastern Niagara Hospital destroyed this CT scan in the normal course of business, after seven years. (R296). On September 4, 2001, the plaintiff returned to Dr. Luzi who recommended cortisone injections and considered possible rotator cuff repair surgery. (R169). When her symptoms returned after the injections, the plaintiff chose to proceed with shoulder decompression/rotator cuff repair surgery on January 3, 2002. (R168, 191- 192). Dr. Luzi saw her for post-operative visits on January 11, 2002; February 19, 2002; and April2, 2002. (R165-167). As of the post-operative visit on April2, 2002, the plaintiff had overall improvement, and was to return on an "as needed basis." (R165, 568-569). No future appointment was scheduled. The plaintiff did not return to see Dr. Luzi for seventeen months. iii. September 5, 2003 Office Visit On September 5, 2003, the plaintiff returned to Dr. Luzi for a "check" ofher condition after being pushed up against a wall. (R161-162). She reported having done reasonably well until a week or so ago when one of her children pushed her against a wall. (R161 ). Dr. Luzi noted the plaintiff was feeling better after having had discomfort for several days, but she still wanted "to have it checked out." (R161 ). At 8 her deposition, the plaintiff testified she had been doing reasonably well until being pushed against a wall and was feeling somewhat better at the time of this visit but wanted to be checked. (R577-579). Dr. Luzi confirmed by x-ray the satisfactory position of the hemiarthroplasty and no obvious evidence of loosening or fracture. (R209). Dr. Luzi diagnosed a strain and contusion, recommended she do exercises onherown,andgaveheranti-inflammatorymedicationsamples.(R161-162).Hewas to see her on an "as needed basis." (R162). No future appointment was scheduled. At her deposition, the plaintiff agreed that, as of September 5, 2003, she was to see Dr. Luzi "as needed." (R582). iv. Thirty-Two Month Gap At this point, there was a lengthy gap in treatment of thirty-months, from September 5, 2003, to April28, 2006. This gap exceeds the length of the two-and-a- half year statute of limitations. When asked why she did not return to see Dr. Luzi from September 5, 2003, to April28, 2006, the plaintiff testified that she "had gotten discouraged with him. It was kind of a learn to live with it, you're going to have problems, kind of deal with it type of thing. It was like why keep going back to him, he's going to keep telling me the same thing." (R586). She testified that she told her primary care doctor, Dr. Varallo, that she continued to have problems and "really didn't want to go back to him because he keeps putting me off." (R591). Yet, she 9 testified that during this almost three year interval, her shoulder was "terrible" and there were periods of time that she wore a sling every day and had constant pain problems. (R591 ). She testified to having no contacts with Dr. Luzi or Northtowns Orthopedics during the thirty-two month gap, including no phone calls, no correspondence, an no other involvement of any kind. (R642-643). v. April 28, 2006 Office Visit and After The plaintiff did not return to Dr. Luzi's office until thirty-months later, on April 28, 2006. At that visit, Dr. Luzi noted that since the last time he saw her on September 5, 2003, she had continued discomfort in her left shoulder. (R158). He confirmed by x-ray the good position of the humeral component. (R208). He referred the plaintiff to his partner at Northtowns Orthopedics, Dr. Donald Douglas, for consideration of a total shoulder revision or possible resurfacing of the glenoid. (R158). Dr. Luzi was not performing shoulder replacement surgeries at this time. (R757). On May 10, 2006, the plaintiff saw Dr. Douglas. (Rl 09). Reviewing the x- rays, Dr. Douglas found no signs of loosening or lucency around the prosthesis site, some flattening of the glenoid, and a well-positioned prosthesis overall. (R109). He thought the plaintiffs pain was from glenoid wear and that she would benefit from a reverse ball-and-socket shoulder surgery. (Rl 09). The plaintiff did not return to 10 Northtowns Orthopedics again. Instead, she began treating with orthopedic surgeon Dr. Paul Paterson beginning on July 14, 2006. (R264-267). D. Motions, Orders and Appeals In March 2014, the defendants moved for partial summary judgment, dismissing the action insofar as it alleges malpractice based on conduct before March 3 0, 2006, as time-barred by the statute oflimitations. (R4 7 -69). The plaintiff opposed this motion. (R312-363). By Decision and Order filed on July 14, 2014, the trial court denied the defendants' motion, finding triable issues of fact as to whether the continuous treatment doctrine applies. (R8-23). Since the Decision and Order did not directly address whether equitable estoppel applied, the defendants moved to reargue that part of their motion. (R1265-1292). By Order filed on February 14, 2015,. the trial court granted reargument and denied the motion, finding triable issues of fact as to the whether equitable estoppel doctrine applies. (R27-28). The defendants noticed appeals of both orders. (R5, 24). The Appellate Division consolidated the appeals. (R3). On June 17, 2106, the Appellate Division, Fourth Department entered a Memorandum and Order addressing both issues -the continuous treatment doctrine and the equitable estoppel doctrine. It held that triable issues fact exist as to whether 11 the continuous treatment doctrine applies, but that the equitable estoppel doctrine does not apply as a matter of law. On that same date, the Appellate Division entered an Order dismissing the other appeal. On September 3 0, 2016, the Appellate Division, Fourth Department entered an Order granting the defendants' motion for leave to appeal to the Court of Appeals, finding that a question of law has arisen, and certifying the following question: Was the order of this Court entered June 17, 2016, properly made? The Order of the Appellate Division should be reversed to the extent that it found that triable issues of fact exist with respect to the continuous treatment doctrine. We ask that this Court find that the continuous treatment doctrine does not apply, as a matter of law. Upon reversal, the defendants' partial summary judgment motion, seeking dismiss any and all allegations based on conduct before March 30, 2006, should be granted. Argument POINT I ALLEGATIONS BASED ON CONDUCT BEFORE MARCH 30, 2006, ARE TIME-BARRED New York Civil Practice Law and Rules §214-a codifies the continuous treatment doctrine. It provides that a medical malpractice action must be commenced 12 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. The continuous treatment doctrine tolls the statute of limitations. McDermottv. Torre, 56 NY2d 399, 407 (1982). Here, allegations of medical malpractice based on the defendants' conduct before March 30, 2006, are time-barred, absent continuous treatment The burden has shifted to the plaintiff to establish that the continuous treatment doctrine applies. Merriman v. Sherwood, 204 AD2d 998 (4th Dept. 1994) (citations omitted). As set forth below, there was no continuous treatment as of September 5, 2003, and after, as a matter of law. POINT II THERE WAS NO CONTINUOUS TREATMENT AS OF THE SEPTEMBER 5, 2003 OFFICE VISIT, WHICH WAS FOR A DIFFERENT COMPLAINT No continuity of treatment exists as of the September 5, 2003 office visit with Dr. Luzi. That visit was discrete, complete, and for a "check" of her condition, and did not continue the treatment provided at the prior visit. The continuous treatment doctrine requires: (1) a course of treatment; (2) for the same condition or complaints; (3) that is continuous. See Gomez v. Katz, 61 AD 3d 108, 111-112 (2nd Dept. 2009)( citations omitted). The term "course of treatment" 13 speaks to "affirmative and ongoing conduct by the physician such as surgery, therapy, or the prescription of medications." !d. at 112 (citation omitted). It is not established by the "mere continuation of a general doctor-patient relationship" or by continuing efforts to arrive at a diagnosis of a condition, or by the failure of the physician to properly diagnose a condition, preventing treatment altogether. !d. at 112 (citations omitted). Continuous treatment does not include examinations requested by the patient for the sole purpose of ascertaining the state of the patient's condition. See CPLR §214-a. The continuous treatment doctrine does not apply where the physician provides the patient with "discrete and complete" medical services that are "diagnostic in nature" and done at the request of the patient "to determine the state of his condition." Marlowe v. E.!. DuPont deNemours & Co., 112 AD2d 769 (4th Dept. 1985)( citation omitted). The doctrine does not apply where the patient initiates a return visit "merely to have his or her condition checked." McDermott, 56 NY2d at 405. Before September 5, 2003, Dr. Luzi's care and treatment of the plaintiff involved two different courses of treatment for her left shoulder. The first was for a left shoulder replacement in January 1999, to address degenerative arthritis, followed by post-operative visits ending on June 15, 1999. (R173-175,179-181, 186-188). The 14 second was for glenoid wear in the surgical shoulder in August 200 1 leading to a rotator cuff surgery in January 2002, followed by post-operative visits ending on April2, 2002. (R165-171,191-192). The plaintiffs April2, 2002 office visit was the last post-operative visit for her 2002 rotator cuff surgery. (R165). At that visit, the plaintiff reported overall improvement with less pain a majority of the time, and she was to be seen only "as needed." (R165, 568-570). Close examination of the nature of the next visit on September 5, 2003, reveals no continuous treatment as of that date. The plaintiff returned on that date for a specific, limited complaint of "discomfort over several days" after having been pushed up against a wall by one of her children. (R161). She reported having done "reasonably well" until a week or so ago when she was pushed, and she felt better at the time of the visit. (R161-162, 577-579). Nevertheless, she wanted to be "checked out." (R161, 578). Dr. Luzi diagnosed a left shoulder strain and contusion with no obvious evidence of loosening or fracture. (R161 ). The plaintiff did not return on September 5, 2003, as part of a regular, routine, or scheduled follow-up appointment for her previous rotator cuff surgery, nor did she see Dr. Luzi for the same condition or complaints that he saw her for at the previous visit. Since Dr. Luzi did not see the plaintiff on September 5, 2003, for the same 15 condition or complaints that he saw her for at the previous visit, but saw her at the plaintiffs request to "check" her condition after being pushed up against a wall, the continuous treatment doctrine does not apply as a matter of law. POINT III THE CONTINUOUS TREATMENT DOCTRINE DOES NOT APPLY SINCE THERE WAS NO EXPLICITLY ANTICIPATED APPOINTMENT OR TREATMENT Since no appointment was scheduled and no further treatment explicitly anticipated by both the plaintiff and Dr. Luzi as of September 5, 2003, the continuous treatment doctrine does not apply as a matter of law. Continuous treatment exists where 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 the last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past." Richardson v. Orentreich, 64 NY2d 896, 898-899 (1995) (citation omitted). The patient remains under the continuous treatment of the physician from the time of the last visit and the next scheduled one where the latter's purpose is ongoing corrective efforts for the same or a related condition. I d. at 899. Continuous treatment exists "where the physician and patient reasonably intend the patient's uninterrupted reliance upon the physician's observation, directions, concern, and responsibility for 16 overseeing the patient's progress ... . "!d. at 899. In the case of Aulita v. Chang, 44 AD3d 1206 (3rd Dept. 2007), the court considered whether the continuous treatment applied to care given at a much earlier time, in 1999, when the plaintiff treated with another physician at defendant urology group. This other physician, who saw the plaintiff in 1999, diagnosed the plaintiffs back, bladder, testicular, and abdominal pain as a hernia problem, and told the plaintiff he would see him on an "as-needed basis if we identify any urologic problems." !d. at 1206. However, no further appointments were scheduled. The court held there was no continuous treatment reaching back to this 1999 date. !d. at 1210. Important to the court was that "no follow-up appointments were contemplated," and thus no further treatment was "explicitly anticipated by both the patient and the physician." !d. (citation omitted). Under the circumstances, the later treatment of the plaintiffby the urology group was considered a "resumption" of treatment as opposed to a continuation of the prior care. !d. (citation omitted). As of the September 5, 2003 office visit, no future appointment was scheduled and no future treatment was explicitly anticipated by both the plaintiff and the physician. It is undisputed that, as of September 5, 2003, the plaintiff was to return to Dr. Luzi "as needed." Dr. Luzi's records reflect this fact, and the plaintiff agreed at her deposition that she was to return "as needed." (R162, 582). On September 5, 17 Dr. Luzi did not schedule the plaintiff for a regular or routine follow-up appointment in the future. The plaintiff relies on Dr. Luzi's "To WhomltMay Concern" letter dated April 2, 2002, written to the plaintiffs health insurer, Univera, to obtain authorization for a TENS unit for the plaintiff. (R896-897). In this letter, Dr. Luzi writes: "She most likely will need further surgery in the future due to her young age and need for revision shoulder replacement vs fusions." (R897). But this letter does not explicitly anticipate future treatment by Dr. Luzi; it speaks only to the possibility of future surgery in the context of a physician writing an insurance company to obtain approval for medical device. This letter was written to Univera, not to the plaintiff. The record contains no evidence that, on September 5, 2003, Dr. Luzi explicitly anticipated that he would perform a future surgery on the plaintiff. The record contains no evidence that the plaintiff explicitly anticipated, on September 5, 2003, that Dr. Luzi would perform surgery on her in the future. There is no evidence of any discussion on that date by Dr. Luzi and the plaintiff as to the possibility of future surgery. (R161-162, 577-583). Since no future appointment was scheduled at the September 5, 2003 office visit and no future treatment was explicitly anticipated by both the plaintiff and Dr. Luzi, the continuous treatment doctrine does not apply, as a matter of law. 18 POINT IV THE CONTINUOUS TREATMENT DOCTRINE DOES NOT APPLY SINCE PLAINTIFF LACKED CONTINUING TRUST IN DR. LUZI DURING HER LONG HIATUS FROM HIS CARE The continuous treatment doctrine does not apply here since its underlying rationale is not implicated. At the heart of the continuous treatment doctrine is the goal of permitting the patient to place continuing trust and confidence in her physician to treat her condition and to identify and correct any mistakes, without having to interrupt the patient-physician relationship to commence a lawsuit. During her thirty-month gap in treatment, plaintiff Lohnas was not placing trust and confidence in Dr. Luzi. The Court of Appeals has held that the policy underlying the continuous treatment doctrine is "to maintain the physician-patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure." McDermott, 56 NY2d at 408 (citation omitted). Such a policy implicitly recognizes that "the doctor is not only in a position to identify and correct any mistakes but is also best placed to do so." Id. It also recognizes that it would be "absurd to require a wronged patient to interrupt corrective efforts by serving a summons" on the physician. Allende v. New York City Health Hasps. Corp., 90 NY2d 333, 338 (1997)(citation omitted). 19 The continuous treatment doctrine seeks to "ameliorate the harshness of a rule which ties accrual of a medical malpractice action to the date of the offending act, thereby creating a dilemma for the patient, who must choose between silently accepting continued corrective treatment from the offending physician, with the risk that his claim will be time.-barred, or promptly instituting an action, with the risk that the physician-patient relationship will be destroyed." Rizkv. Cohen, 73 NY2d 98,104 (1989) (citations omitted). The continuous treatment doctrine serves two functions: it provides the patient with the opportunity to seek corrective treatment from the doctor and it gives the physician a reasonable chance to identify and correct errors made at an earlier stage in treatment. Barrella v. Richmond Memorial Hasp., 88 AD2d 379, 383 (2nct Dept. 1982). A necessary predicate underlying the continuous treatment doctrine is the "continuing trust and confidence" that the patient places in her physician. Richardson v. Orentreich, 64 NY2d 896, 898 (1985) (citation omitted). As the Court of Appeals has held, the toll of the continuous treatment doctrine is only properly invoked when its underlying policies are implicated. See Rizk, 73 NY2d at 104. The courts have repeatedly held that where the patient does not place continuing trust in her physician, the continuous treatment doctrine does not apply. In Allende, supra, the Court found that while there was evidence that the defendant 20 hospital expected the patient to return because, at discharge, a hospital physician advised her to return so her hand could be examined, there was no evidence that the plaintiff intended to return. In fact, the plaintiff testified that she did not return because she "did not have faith any more in that hospital." Allende, 90 NY2d at 339. The Court held that "both the physician and the patient" must reasonably intend the patient's uninterrupted reliance upon the physician's observation, directions, concern, and responsibility for overseeing the patient's progress for the continuous treatment doctrine to apply. Id. at 338 (citations omitted; italics in the original). The Court held, however, that the plaintiff's situation did not "comport with the policies behind the continuous treatment doctrine." Id. at 339. Since the plaintiff did not have the required continuing trust and confidence in her health care provider that underlies the continuous treatment doctrine, the doctrine did not apply. !d. Similarly, in Barrel/a, supra, the court held there was no continuous treatment since the defendant physician's visits with the plaintiff eight-and- a-halfmonths later were a "resumption" of treatment rather than a "continuation." Barrel/a, 88 AD2d at 3 84. It was significant to the court that the plaintiff showed little evidence of having "trust and confidence" in the defendant physician during that eight-and-a-half month interval in treatment since she had disregarded the physician's advice to return to his office and made no effort to seek corrective treatment from the physician during the 21 long interval from the last visit. !d. The case of Massie v. Crawford, 78 NY2d 516 (1991), reargdenied, 79 NY2d 978 (1992), is instructive. There, the Court of Appeals stated that the continuous treatment exists where a physician oversees a patient's recovery following surgery, so as to check wounds and monitor the healing process. !d. at 520. The continuous treatment doctrine applies there since the patient "could not reasonably be expected to terminate aftercare and sue for malpractice while the physician was still checking the wounds and monitoring the healing process." !d. However, it does not apply "when there was no treatment to continue and the plaintiff would jeopardize nothing by instituting suit at any time if she believed the defendant guilty of malpractice." !d. It does not apply where the plaintiff could have "interrupted the services and switched physicians at any time without jeopardizing her health." !d. A patient is not entitled to the toll of the continuous treatment doctrine "in the absence of continuing efforts by a doctor to treat a particular condition ... . "!d. at 519 (citation omitted). PlaintiffLohnas did not return to Dr. Luzi for thirty-two months. During this time, she deliberately did not seek further treatment or corrective efforts from him, and essentially abandoned care and efforts by him to diagnose and treat her claimed continued complaints. Her own testimony confirms she was no longer placing trust and confidence in him after the September 5, 2003 office visit. She testified that she 22 did not return to Dr. Luzi during this long gap because she "had gotten discouraged with him" and questioned why she should go back to him. (R5 86). She testified that she told her primary care doctor that she was continuing to have problems and she "really didn't want to go back to [Dr. Luzi] because he keeps putting me off." (R591 ). Yet she testified that her shoulder was "terrible" during this time. (R591 ). Though plaintiffLohnas understood on September 5, 2003, that she was to see Dr. Luzi "as needed," she chose not to follow his advice to return "as needed" and did not seek him out for further care and treatment. (R582). She had no contact with Dr. Luzi or his office during this time. (R642-643). A patient does not place trust and confidence in a physician with whom she has become "discouraged," to whom she "doesn't really want to go back," and to whom she chooses not to go back for treatment or corrective treatment, despite her "terrible" condition. Like the plaintiff in Allende, supra, plaintiff Lohnas lost faith in her physician and, as in Allende, the continuous treatment doctrine does not apply. During her long hiatus, plaintiff Lohnas was not under a course of treatment by Dr. Luzi. She was not relying on Dr. Luzi for care, treatment, or corrective efforts. By not returning during the hiatus, she did not give him "a reasonable chance to identify and correct errors made at an earlier stage in treatment." See Barrel/a, 88 AD2d at 3 83 (citation omitted). As a result, she was never confronted with the 23 dilemma of either continuing treatment by him or interrupting continued services to commence a lawsuit. There simply was no course of treatment by Dr. Luzi from September 5, 2003, through April 28, 2006, that the plaintiff would have had to interrupt or jeopardize by terminating the patient-physician relationship. Since the underlying rationale of the continuous treatment doctrine would not be served by applying it here, where the plaintiff lacked continuing trust and confidence in her physician during her long absence from his care, the continuous treatment doctrine does not apply, as a matter of law. POINTY THE CONTINUOUS TREATMENT DOCTRINE DOES NOT APPLY SINCE PLAINTIFF DID NOT INITIATE A TIMELY RETURN VISIT It is undisputed that the plaintiff took a particularly lengthy break from the defendants' care and treatment, and that the gap in treatment exceeds the two-and-a- half year statute of limitations. Even if this Court holds that a break in treatment longer than the length of the statute of limitations is not per se dispositive, the plaintiffs failure to instigate a timely return visit to Dr. Luzi breaks continuity of treatment, as a matter of law. The Appellate Division, Second Department has repeatedly held that where the interval in treatment exceeds the length of the statute of limitations, treatment is not 24 continuous, as a matter of law. See Barrel/a, 88 AD2d 3 79 (holding that treatment is not continuous where the interval between treatments exceeds the statute of limitations period, citing the Appellate Division, Fourth Department case of Renda v. Frazer, 75 AD2d 490 [4th Dept. 1980]); Bennin v. Ramapa General Hasp., 72 AD2d 736 (2nd Dept. 1979) (same holding); Curcio v. Ippolito, 97 AD2d 497 (2nd Dept. 1983) (same holding), aff'd 63 NY2d 967 (1984); Sherry v. Queens Kidney Center, 117 AD2d 663 (2nd Dept. 1986) (same holding); and Eagles ton v. Mt. Sinai Medical Center, 144 AD2d 427 (2nd Dept 1988) (same holding), appeal denied 74 NY2d 601 (1989). Though, in Shumway v. DeLaus, 152 AD2d 951 (4th Dept. 1989), appeal dismissed 75 NY2d 946 (4th Dept. 1989), the Appellate Division, Fourth Department declined to hold that a gap in treatment exceeding the two-and-a-halfyear statute of limitations bars the application of the continuous treatment doctrine as a matter of law. Subsequently, in Massie, supra, the Court of Appeals stated that the interval between visits is not "per se dispositive" of the defendant's claim that the statute of limitations has run. Massie, 78 NY2d at 519. Yet, subsequent to both the Shumway and Massie decisions, the Appellate Division, Second Department held again in Bulger v. Nassau County Medical Ctr., 266 AD2d 212 (2nd Dept. 1999), that a gap in treatment between visits exceeding the 25 applicable statute of limitations period breaks continuity of treatment. At a minimufl?., however, the case law provides that the patient must initiate a timely return visit to the physician for the continuous treatment doctrine to apply. The Court of Appeals has stated that the continuous treatment doctrine includes within its scope a "timely return visit instigated by the plaintiff to complain about and seek treatment for a matter related to the initial treatment." McDermott, 56 NY2d at 406 (emphasis added). The case of Curcio, supra, is instructive since it involves a treatment gap longer than the statute of limitations. In Curcio, the Appellate Division, Second Department found no continuous treatment as a matter of law since the thirty-five month gap in treatment exceeded the statute of limitations period. On appeal, this Court upheld the finding of no continuous treatment. It did so by finding that the plaintiffs return to the physician after thirty-five months, with no contact in between visits, was not a "timely return visit instigated by the plaintiff to complain about and seek treatment for a matter related to the initial treatment." Curcio, 63 NY2d at 969 (citation omitted; italics in original). In so holding, this Court stated that "it was enough" that there was no contact between the plaintiff and the defendant during the gap in treatment. Id. The Curcio holding is on point to the facts of this case. In Curcio and in this 26 case, the plaintiff did not return to the physician for a length of time exceeding the length of the statute oflimitations: thirty-five months in Curcio and thirty-two months here. As in Curcio, there were no contacts between the plaintiff and the defendants during the lengthy hiatus from treatment. As in Curcio, Ms. Lohnas' s break in treatment, which exceeded the length of the statute of limitations and during there was no contact between plaintiff and defendant, does not demonstrate a timely return visit as a matter of law. Also, when plaintiff Lohnas returned in April 2006, it was not related to the complaints made at the previous visit, which had been for a check of her condition after being pushed up against a wall. Plaintiff Lohnas' s failure to instigate a timely return visit breaks continuity of treatment, as a matter of law. It has been said that "the primary purpose of a limitations period is fairness to a defendant." Duffy v. Horton Memorial Hospital, 66 NY2d 4 73, 4 76 (1985) (citation omitted). A defendant is entitled to "a reasonable expectation that the slate has been wiped clean of ancient obligation, and he ought not be called on to resist a claim where the 'evidence has been lost, memories have faded, and witnesses have disappeared.'" !d. (citation omitted). This case exemplifies one of the reasons why a statute of limitations is so important- because important evidence can grow stale or be destroyed over time. The precipitating events occurred in January 1999, and the action was not sued until 27 September 2008, nearly ten years later. The x-rays taken at Millard Fillmore Suburban Hospital of the plaintiffs left shoulder on January 19, 1999, pre-operatively and intra-operatively, were destroyed in the regular course ofbusiness by the hospital. (R298). Eastern Niagara Hospital destroyed her 1998 x-ray films and 2001 CT scan, and Lockport MRI destroyed her 1998 MRI, in the regular course ofbusiness. (R296- 297). Pertinent radiological evidence is no longer available due· to the excessive passage of time, prejudicing the defense. Since the plaintiff failed to instigate a timely return visit, and instead waited thirty-two months, during which time she had no contact with the defendants, no trust and confidence in Dr. Luzi, and no course of treatment by him, there is no continuous treatment, as a matter of law. POINT VI DEFENDANTS ARE ENTITLED TO PARTIAL SUMMARY JUDGMENT The defendants are entitled to partial summary judgment, dismissing the plaintiffs allegations insofar as they are based on conduct prior to March 30, 2006, as a matter of law. When the movant's submissions establish entitlement to judgment as a matter of law, the burden shifts to the opponent to produce evidentiary proof in admissible 28 form establishing the existence of material questions of fact. Alvarez v. Prospect Hasp., 68 NY2d 320 (1986). To defeat the motion, the opposing party must show facts sufficient to require a trial of any issue of fact. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980)(quotations and citation omitted). See also CPLR 3212. Where there are no material and triable issues of fact, the motion for summary judgment should be granted. Dougherty v. Kinard, 215 AD2d 521, 522 (2nd Dept. 1995). The burden has shifted to the plaintiff to raise a triable issue of fact with respect to the application of the continuous treatment doctrine. For all of the reasons below, the plaintiff cannot raise a triable issue of fact as to the application of the continuous treatment doctrine. As a matter oflaw, the discrete and complete office visit on September 5, 2003, for a check of her condition unrelated to the complaints made at the previous visit, broke any continuity of treatment. As a matter of law, there was no continuous treatment as of September 5, 2003, since the plaintiff was to return on an "as needed" basis, and no future appointment was scheduled and no further treatment was explicitly anticipated by both the plaintiff and Dr. Luzi. As a matter oflaw, there was no continuous treatment during the lengthy thirty- 29 month·gap in treatment during which the plaintiff did not place trust and confidence in Dr. Luzi but, rather, was "discouraged" and chose not to return to see him despite the "terrible" condition of her shoulder. During this gap, there was no course of treatment to interrupt, or that would be jeopardized. Trust and confidence underlie the continuous treatment doctrine and, without them, there is no reason to apply the continuous treatment doctrine. Finally, as a matter of law, there is no continuous treatment since the plaintiff did not initiate a timely return visit to Dr. Luzi. Instead, she waited thirty-two months, a period exceeding the length of the statute of limitations, chose not to return to him, and had no contacts whatsoever with his office or him. Under all of these facts, the plaintiff's return to Dr. Luzi's office in April2006 was a resumption of treatment, not a continuation of it. CONCLUSION For the foregoing reasons, this Court should reverse the decision of the Appellate Division, Fourth Department insofar as it held that triable issues of fact exist regarding the application of the continuous treatment doctrine, and should hold that the doctrine does not apply, as a matter of law. Upon reversal, the defendants' motion for partial summary judgment dismissing the plaintiff's cause of action, and any and all allegations, insofar as it alleges medical malpractice based on conduct 30 prior to March 30, 2006, as time-barred by the statute of limitations, should be granted. Dated: January 11, 2017 Buffalo, New York Respectfully submitted, THE TARANTINO LAW FIRM, LLP By: 31 Tamsin J. Hager, Esq. Attorneys for Defendants-Appellants 1500 Rand Building 14 Lafayette Square Buffalo, New York 14203 (716) 849-6500