Darlene M. Lohnas, Respondent,v.Frank A. Luzi, Jr., M.D. et al., Appellants.

Brief

N.Y.January 3, 2018

To be Argued by: BRIAN P. FITZGERALD, ESQ. (Time Requested: 15 Minutes) APL-2016-00186 Appellate Division Docket Nos. CA 15-00195 and CA 15-00398 Erie County Clerk’s Index No. I2008-010850 Court of Appeals of the State of New York DARLENE M. LOHNAS, Plaintiff-Respondent, – against – FRANK A. LUZI, JR., M.D. and NORTHTOWNS ORTHOPEDICS, P.C., Defendants-Appellants. (Appeal No. 1) ________________________________________ DARLENE M. LOHNAS, Plaintiff-Respondent, – against – FRANK A. LUZI, JR., M.D. and NORTHTOWNS ORTHOPEDICS, P.C., Defendants-Appellants. (Appeal No. 2) BRIEF FOR PLAINTIFF-RESPONDENT FITZGERALD & ROLLER, P.C. Attorneys for Plaintiff-Respondent 509 Liberty Building 424 Main Street Buffalo, New York 14202 Tel: (716) 852-2000 Fax: (716) 852-2002 Dated: February 28, 2017 i TABLE OF CONTENTS TABLE OF AUTHORITIES ………………………………………………..……iii STATEMENT OF QUESTIONS PRESENTED ……………………………….....1 PRELIMINARY STATEMENT …………………………………………..………3 STATEMENT OF FACTS ……………………………………………………….11 A. Lohnas’ Background and History of Left Shoulder Problems ………………………………………………….11 B. Lohnas’ Seven Years of Continuing Treatment by Dr. Luzi for the Same Conditions ……………………………….11 C. Lohnas Continued to Place Her Trust and Confidence in Dr. Luzi Despite Not Seeing Him During the Alleged Gap of September 5, 2003 and April 28, 2006 ……………………………………………19 D. Lohnas’ Last Visits With Dr. Luzi and Dr. Douglas ……………….20 E. Dr. Luzi’s Office Failed to Retain Certain X-rays ………………….22 F. Lohnas’ Treatment by Dr. Paterson ………………………………...23 G. Dr. Luzi’s Self Serving and Conclusory Affidavit and Testimony ……………………………………………30 H. Plaintiff’s Expert Clearly Contradicted Dr. Luzi’s Claims …………………………………………………...32 I. Dr. Luzi’s Misrepresentations and Concealment …………………...33 ii J. Summary ……………………………………………………………34 ARGUMENT ………………………………………………………………..……36 POINT I QUESTIONS OF FACT PRECLUDE THE STATUTE OF LIMITATIONS DEFENSE BASED ON CLAIMS OF NO CONTINUOUS TREATMENT AS OF JUNE 15, 1999, APRIL 2, 2002 OR SEPTEMBER 5, 2003 AND THIS ISSUE IS BEYOND THE SCOPE OF REVIEW …..…………………..…36 A. The Continuous Treatment Issue is Beyond the Court of Appeals Scope of Review ……………………………..36 B. There Was Continuous Treatment for the Same Conditions Over the Years – There Were No Gaps in Treatment ………………………………………..37 C. The Court of Appeals Should Not Rule, For the First Time, That a Gap in Treatment Exceeding the Statute of Limitations is Dispositive and Bars Application of the Continuous Treatment Doctrine …………………………………….45 POINT II THERE ARE QUESTIONS OF FACT AS TO WHETHER EQUITABLE ESTOPPEL APPLIES TO ESTOPP DR. LUZI FROM ASSERTING THE STATUTE OF LIMITATIONS DEFENSE ……………………………….57 CONCLUSION …………………………………………………………………..62 CERTIFICATION OF WORD COUNT PURSUANT TO 22 N.Y.C.R.R. 500.13(c)(1) ……………………………………………………...63 iii TABLE OF AUTHORITIES Cases Page Allende v. New York City Health and Hospitals Corp, 90 N.Y.2d 333 (1997) ………………………………………………6, 36, 40 Aulita v. Chang, 44 A.D.3d 1206 (3d Dept. 2007) ………...………………………………...50 Arias v. Southside Hospital, 203 A.D.2d 220 (2d Dept. 1994) …………………………………………..54 Barella v. Richmond Memorial Hospital, 88 A.D.2d 379 (2d Dept. 1982) ……………………………………52, 53, 54 Bennin v. Ramapo Gen Hosp, 72 A.D.2d 736 (2d Dept. 1979) ...…………….. …………………..52, 53, 54 Borgia v. City of New York, 12 N.Y.2d 151 (1962) …………................................................37, 45, 46, 48 Bulger v. Nassau County Medical Center, 266 A.D.2d 212 (2d Dept. 1999) …………………...……………………...55 Cannon v. Putnam, 76 N.Y.2d 644, 651 (1990) …………………………………………………7 Chestnut v. Bobb-McKoy, 94 A.D.3d 659 (1st Dept. 2012) ……………………………………..……..47 Cooper v. Kaplan, 78 N.Y.2d 1103 (1991) ……………………………………………………40 Cox v. Kingsboro Medical Group, 88 N.Y.2d 904 (1996) ……………………………………..10, 40, 46, 54, 55 iv Curcio v. Ippolito, 97 A.D.2d 497, aff’d 63 N.Y.2d 967 (1984) ..….......….10, 38, 46, 50, 51, 52 Davidson v. O’Brien, 21 A.D.3d 1330 (4th Dept. 2005) …………………………………………..51 Davis v. City of New York, 38 N.Y.2d 257 (1975) ……………………………………………………..38 Devadas v. Niksarli, 130 A.D.3d 1000 (1st Dept. 2014) ……………………………………..…..47 Eagleston v. Mount Sinai Medical Center, 144 A.D.2d 427 (2d Dept. 1988) ………...……………………….........52, 54 Edmonds v. Getchonis, 150 A.D.2d 879 (3d Dept. 1989) ………………………………………48, 60 Flint v. Zielinski, 130 A.D.3d 1460 (4th Dept. 2015) …………………………………………52 Fonda v. Paulsen, 46 A.D.2d 540 (3d Dept. 1975) ……………………………………………48 Ganess v. City of New York, 85 N.Y.2d 733 (1995) ……………………………………………………..40 Grellet v. City of New York, 118 A.D.2d 141 (2d Dept. 1986) ………………………………………54, 56 Hilts v. FF Thompson Health Systems, Inc., 78 A.D.3d 1689 (4th Dept. 2010) ……………………..................................51 Jorge v. New York City Health and Hospitals Corp, 79 N.Y.2d 905 (1992) ……………………………………………………..40 Marmol v. Green, 7 A.D.3d 682 (2d Dept. 2004) ……………..................................................56 v Massie v. Crawford, 78 N.Y.2d 516 (1991) ………………………..............................................39 McDermott v. Torre, 56 N.Y.2d 399 (2d Dept. 1982) …………………………………..7, 9, 38, 45 Meath v. Mishrick, 68 N.Y.2d 992 (1986) ……………………………………………………..39 Michaels-Daily, 245 A.D.2d 430 (2d Dept. 1997) ……………………………………..........55 Naetzcker v. Brocton Central School District, 50 A.D.2d 142 (4th Dept. 1975), reversed on other grounds, 41 N.Y.2d 929…………..…………………….53 Nykorchuk v. Henriques, 78 N.Y.2d 255 (1991) ……………………………………………………..39 Peykarian v. Yin Chu Chien, 109 A.D.3d 806 (2d Dept. 2013) …………………………………………..56 Renda v. Frazer, 75 A.D.2d 490 (4th Dept. 1980) ………...………………………………….58 Richardson v. Orentreich, 64 N.Y.2d 896 (1985) ……………..………………………………………38 Rizk v. Cohen, 73 N.Y.2d 98 (1989) …………………………..………………………39, 46 Ross v. Community General Hospital, 150 A.D.2d 838 (3d Dept. 1999) ……………........................................59, 60 Sherry v. Queens Kidney Center, 117 A.D.2d 663 (2d Dept. 1986) ………………....................................52, 53 vi Shumway v. DeLaus, 152 A.D.2d 951 (4th Dept. 1989) …...……………………………………...50 Siegel v. Wank, 183 A.D.2d 158 (3d Dept. 1992) …………………………………………..49 Simcuski v. Saeli, 44 N.Y.2d 442 (1978) ………..………………………………………..57, 58 Stiles v. Batavia Atomic Horse Shoes, 81 N.Y.2d 950, 951 ………………………………………………………..36 Ugarriza v. Schmeider, 46 N.Y.2d 471 …………………………………………………………38, 45 Young v. New York City Health and Hospitals Corp, 91 N.Y.2d 291 (1998) ……………………………………………………..41 Statutes CPLR § 5501(b) ……………………………………………………………..2, 6, 36 1 STATEMENT OF QUESTIONS PRESENTED 1. Are there questions of fact as to whether plaintiff-respondent Darlene Lohnas continuously treated with Dr. Luzi for the same conditions from December 15, 1998 until April 28, 2006, the last date of treatment, so as to preclude dismissal of Darlene Lonhas’ claims prior to March 3, 2006? Answer of the Courts Below: Yes. 2. Are there questions of fact as to whether defendant-appellant Frank A. Luzi, M.D. fraudulently misrepresented and concealed both his malpractice committed during Lohnas’ surgery of January 19, 1999 and the true condition and cause of Lohnas’ shoulder problem so as to estopp defendants-appellants from asserting the statute of limitations defense? Answers of the Courts Below: Supreme Court found that there were questions of fact with respect to the question of equitable estoppel so as to preclude defendants-appellants from raising the statute of limitations defense. The Fourth Department disagreed and dismissed Darlene Lonhas’ equitable estoppel claim. 3. Is the Fourth Department’s Memorandum and Order, which affirmed Supreme Court’s findings of facts, beyond the Court of Appeals’ scope of review 2 because there is evidence in the Record supporting such findings? CPLR 5501(b). Answers of the Courts Below: Not applicable. 3 PRELIMINARY STATEMENT This Brief is submitted on behalf of the plaintiff-respondent Darlene M. Lohnas (hereinafter Lohnas). The Fourth Department’s Memorandum and Order should be affirmed because it found that there were questions of fact as to whether Lohnas continuously treated with defendants-appellants, Frank Luzi, M.D. (hereinafter Dr. Luzi) and Northtowns Orthopedics, for over seven years, from December 15, 1998 through April 28, 2006 for the same conditions of severe osteoarthritis of her left shoulder and an excessively retroverted humeral head implant negligently positioned at 90 degrees of retroversion by Dr. Luzi in his surgery of January 19, 1999, which caused her continuing symptoms, including the destruction of her rotator cuff and deterioration of her glenoid. Supreme Court, in its initial ruling on appellants’ motion for summary judgment to dismiss on the grounds of the statute of limitations, denied appellants’ motion and found: On this record, there is no question but that plaintiff pursued an actual course of treatment from defendant over a certain period of time that extended from December, 1998, on or about a month before the initial surgery, through April 28, 2006, a date within the two and half-year period prior to commencement of the action. The Court further has no doubt on this record that the course of treatment was, in its entirety, for the same conditions or complaints that give rise to plaintiff’s claim of malpractice, or that directly relate to such conditions. 4 In other words, the Court has little doubt that the entire course of defendants’ treatment of plaintiff related to her left shoulder pain, limitations and other symptoms. (R.18-19) (Emphasis added) Supreme Court’s findings were clearly supported by the testimony of Lohnas’ subsequent treating orthopedic surgeon, Paul Paterson, M.D., who testified that the humeral head implant was wrongly positioned by Dr. Luzi in the surgery which he performed on January 19, 1999 at 90 degrees of retroversion instead of 30 to 40 degrees. Dr. Paterson also testified that this malpositioning of the humeral head implant by Dr. Luzi caused destruction of her rotator cuff and deterioration of her glenoid which explained her symptomology for over seven years. Anatomical drawings of the shoulder (R.365-369) are annexed hereto as Appendix A. Supreme Court’s findings were also supported by the Affidavit of plaintiff’s expert who opined that Dr. Luzi had deviated from accepted standards of orthopedic surgical care when he malpositioned the humeral head, failed to note that the x-rays which he took over a period of seven years suggested excessive retroversion, failed to order a CT scan to actually determine whether there was significant retroversion, and that the malpositioning of the humeral head caused Lohnas’ symptomology. Having found that there was continuous treatment for the same conditions through the date of Lohnas’ last visit with Dr. Luzi, April 28, 5 2006, Supreme Court correctly found that Lohnas timely commenced suit when filed on September 30, 2008 which was within two and a half years of the last date of treatment. In its initial ruling, Supreme Court having ruled that there was continuous treatment, found it unnecessary to address Lohnas’ claim that Dr. Luzi should be estopped from asserting the statute of limitations because of his fraudulent misrepresentations and concealment of his malpractice of the excessive retroversion of the humeral head implant in his surgery of January 19, 1999, and his misrepresentations and concealment of the true cause of Lohnas’ ongoing symptomology, the destruction of her rotator cuff and deterioration of her glenoid caused by the excessively retroverted humeral head implant (R.11). Appellants moved to reargue Supreme Court’s finding of continuous treatment and also asked Supreme Court to decide the equitable estoppel issue. (R.1265-1266) Supreme Court adhered to its initial finding that there were questions of fact as to continuous treatment and, as to the equitable estoppel issue, denied appellants’ motion finding that there were questions of fact on this issue as well. (R.29) Appellants appealed both Supreme Court’s Orders to the Appellate Division, Fourth Department. By Memorandum and Order (R.5a-8a), the Fourth Department 6 affirmed Supreme Court’s Order finding questions of fact as to continuous treatment but modified it by granting appellants’ motion dismissing Lohnas’ equitable estoppel claim. The Fourth Department’s lone dissenting Justice disagreed with the majority’s opinion solely upon his view of the facts. He incorrectly found that “plaintiff’s testimony … established that for over two and a half years she neither believed nor expected that defendant was making, or would make, any continuing efforts to treat her shoulder problems.” (R.8a) In fact, Lohnas’ testimony (R.370- 746) contains no such statement, nor has such purported testimony ever been cited by appellants in the lower courts or on this appeal. Appellants moved for reargument or leave to appeal to this Court. The Fourth Department denied reargument but granted leave to appeal, certifying the following question, “Was the Order of this Court entered June 17, 2016, properly made?” (R.3a) Pursuant to CPLR § 5501(b), and as the New York Court of Appeals has held in Allende v. New York City Health and Hospitals Corp, 90 N.Y.2d 333, 339 (1997), where the trial court’s findings are affirmed on appeal, and there is evidence in the Record to support such findings, as in the present case, such findings are beyond the scope of review by the New York Court of Appeals. See, 7 also, Cannon v. Putnam, 76 N.Y.2d 644, 651 (1990). Furthermore, where issues of fact exist as to continuous treatment, summary judgment is precluded. McDermott v. Torre, 56 N.Y.2d 399, 406 (1982). Certainly, respondent Lohnas has raised questions of fact which preclude summary judgment and on a summary judgment motion, the evidence must be viewed in a light most favorable to her. Appellants argue, at Points I and II of their Brief, that Dr. Luzi’s care and treatment of Lohnas involved two different courses of treatment: the first involving shoulder surgery on January 19, 1999 for degenerative arthritis ending on June 15, 1999; the second for glenoid wear leading to rotator cuff surgery on January 3, 2002 with post-op visits ending on April 2, 2002. Appellants then argue that the next visit of September 5, 2003 was not continuous treatment for the same condition treated at the previous visit of April 2, 2002 because he saw her for a specific complaint of discomfort because she had been pushed against a wall by one of her children. In so arguing, appellants ignore the facts that after the Dr. Luzi second surgery of January 3, 2002, Lohnas continued to experience the same problems with her shoulder. In fact, the January 16, 2002 post-op x-rays showed that the humerus was still “riding high” (R.827-828) resulting in problems with the glenoid which the January 3, 2002 did not adequately remedy, that Dr. Luzi noted on the 8 visit of April 4, 2002 that “she will have periodic symptoms due to her degenerated rotator cuff” (R.1615) which was what was causing the humerus to be high riding and destroying her glenoid, and that when she returned on September 5, 2003, Dr. Luzi again made note of this very same problem, the hemiarthroplasty “… appears to be butting against the acromion” (R.161), which Dr. Luzi also admitted was shown in x-rays of September 5, 2003 (R.828) and was the same thing (R.829) shown in the previous x-rays of January 16, 2002 (R.827). Clearly, therefore, the September 5, 2003 visit was for the same conditions, the deteriorating rotator cuff and glenoid for which he had performed surgery January 3, 2002 and which had been the problem on the visit of April 2, 2002. This ongoing problem explains exactly why Dr. Luzi expected, and intended, that he would see Lohnas again “as needed” which he noted on the visit of April 2, 2002. (R.162) Supreme Court’s factual findings in this regard were affirmed on appeal and should be beyond the Court of Appeals scope of review. Appellants also argue that simply because there was no appointment specifically scheduled after September 5, 2003, there was no continuous treatment after that date and that Lohnas lacked continuing trust and confidence in Dr. Luzi precluding the application of the continuous treatment doctrine. However, these arguments ignore several key facts: 9 1. As of September 2, 2003, Lohnas’ deteriorating rotator cuff and glenoid were not going away; she needed and expected to need further treatment by Dr. Luzi; 2. Dr. Luzi stated that she would continue to “have periodic symptoms;” (R.165) 3. Dr. Luzi stated her problem was “longstanding and chronic” and “she would need further surgery in the future due to her young age and need for revision shoulder replacement versus fusion; (R.164) 4. Dr. Luzi’s direction to Lohnas to return “as needed” as of September 5, 2003 actually evidences both his expectation that he would see her again and treat her ongoing symptoms relating to the ongoing problems of a deteriorating rotator cuff and glenoid; and 5. The record is devoid of any statement by Dr. Luzi that he did not expect to see and treat Lohnas again after either visit of April 2, 2002 and September 5, 2003. Given such facts, the mere fact that no return appointment is specifically scheduled is not dispositive. See Point I, infra, and McDermott v. Torre, 56 N.Y.2d 399 (1982). The mere fact that Lohnas felt discouraged does not mean that she had stopped placing her trust and confidence in Dr. Luzi. After all, he was her 10 doctor and she did go back to him on April 28, 2006. Certainly, on this record, Lohnas has raised significant questions of fact to preclude summary judgment. Respondent Lohnas recognizes that the Court of Appeals might wish to consider the implications raised by this case as to what a “timely return” visit means when there exists a gap in treatment longer than the two and a half year statute of limitations (the gap here is from September 5, 2003 to April 28, 2006 – 31 months – just one month longer than the statute. This Brief will discuss why this Court should not hold for the first time, that such a gap should permit the statute defense, as the vast majority of courts, including the Court of Appeals, have previously declined to so hold. Curcio v. Ippolito, 63 N.Y.2d 967 (1984); Cox v. Kingsboro Med. Group, 88 N.Y.2d 904 (1996). Finally, as discussed at Point II, infra, the Fourth Department’s decision should be reversed with respect to Lohnas’ equitable estoppel claims, given Dr. Luzi’s repeated misrepresentations and concealment of both his negligent positioning of the humeral head and the ongoing destruction of Lohnas’ rotator cuff and glenoid which it caused. Certainly, as Supreme Court found, Lohnas raised questions of fact on this issue as well. STATEMENT OF FACTS A. Lohnas' Background and History of Left Shoulder Problems Darlene Lohnas was born o 1958 (R.410) and just turned 59 years old. She is the mother of three children (R.411 ). She joined the United States Air Force in 1978 (R.428), rose to the rank of Staff Sergeant (R.428), and was medically discharged from the Air Force because of problems with her left shoulder and back in 1985 (R.427). She never had any medical training of any kind (R.424-425). Since 1999-2000 she has been a "stay at home mom" (R.433- 434). While in the Air Force, Lohnas was involved in a motor vehicle accident and injured her left shoulder (R.402-403). She had surgery in 1980 (R.440) and afterwards developed arthritis in the left shoulder (R.443). This was diagnosed in 1984 (R.443-444). She was just 26 years old. When she got out of the Air Force (R.446), she had been told that she would need a shoulder replacement but to put it off as long as possible (R.446) because they do not last forever (R.446). B. Lohnas' Seven Years of Continuing Treatment by Dr. Luzi for the Same Conditions. Lohnas was referred to Dr. Luzi and at age 40 first saw Dr. Luzi in December, 1998 (R.435). She was having severe pain in the left shoulder (R.435). The whole shoulder was extremely achy (R.435). She had difficulty sleeping, she 11 12 could not lay on that side, and she had difficulty reaching, lifting and carrying things (R.436). She was having trouble lifting and carrying her children, doing household chores and carrying laundry (R.437). She had trouble with vacuuming – moving things to vacuum (R.438). She could not shovel her driveway (R.439). When she first saw Dr. Luzi, he told her that she had degenerative osteoarthritis (R.456) that was causing the pain (R.456). Dr. Luzi recommended a shoulder replacement (R.457). Dr. Luzi told her that she needed a shoulder replacement because of severe osteoarthritis (R.459). She was at the point where she could not take it anymore (R.459). He told her that she would be able to have a full range of motion and would essentially be pain free (R.461). Lohnas believed that the life expectancy of the replacement shoulder would be 15 to 20 years (R.481-482). As it turned out, it only lasted seven years until replaced by Paul Paterson, M.D., Lohnas’ subsequent treating orthopedic surgeon, on November 29, 2006 (R.276-277). Dr. Luzi recommended either a partial or complete shoulder replacement depending upon the status of the glenoid (R.880) and the surgery would possibly include subacromial decompression depending upon the status of the rotator cuff (R.880). Her forward flexion of the left shoulder was only to 90 degrees; normal 13 flexion is to 180 degrees (R.1042). Lohnas consented to the surgery (R.466-467). She put her faith in Dr. Luzi (R.464). Dr. Luzi performed surgery on January 19, 1999. He performed a hemiorthroplasty which means he removed the head of the humerus and replaced it with a metal one. After the surgery, Lohnas saw Dr. Luzi in his office on January 26, 1999 (R.470). X-rays were read by Dr. Luzi to show “satisfactory position of the humeral component.” Her forward flexion was still only 90 degrees. Dr. Luzi told Lohnas that the surgery had gone well (R.515). As will be discussed later, this was not true. The humeral head implant was malpositioned by Dr. Luzi at 90 degrees instead of the orthopedic surgical standard of 30 to 40 degrees. Lohnas next saw Dr. Luzi on February 23, 1999 (R.477). Her forward flexion was still only 90 degrees, the same as it was pre-op (R.883). As Lohnas testified, “in fact, truth be told, I am not sure I ever got range of motion any better than I had before the surgery.” (R.478-479) Lohnas next saw Dr. Luzi on April 6, 1999 (R.485). Her forward flexion had improved slightly to 120 degrees (R.884), but Dr. Luzi indicated that she might have impingement type symptoms and might ultimately require subacromial decompression (R.884), a surgery which Dr. Luzi had also considered a possibility on the very first visit in December, 1998 (R.880) and, as will be demonstrated 14 later, he continued to consider doing through the later visits in 2001 and into 2002 when he actually did subacromial decompression surgery on January 3, 2002. Lohnas saw Dr. Luzi again on June 15, 1999 (R.493). Her forward flexion was only 90 degrees (R.885). At this point, Lohnas was not getting the range of motion she had wanted (R.495). She was able to do light things around the house, like doing dishes and wiping down tables and stuff but still was not carrying laundry baskets or anything like that – picking up the kids or anything (R.495- 496). Lohnas had expected to be doing better with range of motion but Dr. Luzi said that it takes time (R.498-499). As will be discussed later, this was not true. The implanted humerus was excessively retroverted which was what was causing her problems, deterioration of the rotator cuff and glenoid. With this problem, it would not “take time” for her shoulder to get better. It would only get worse. Dr. Luzi recommended that she see him on a yearly basis for follow up (R.499-500, R.885), evidencing both his intent and expectation of continuing treatment. Lohnas saw Dr. Luzi again on January 21, 2000 (R.500, R.886). Dr. Luzi noted that Lohnas had never regained full range of shoulder motion (R.886). Her forward flexion was still only 90 degrees (R.886). Dr. Luzi read x-rays and noted that they showed satisfactory position of the humeral head and that her symptoms most likely were coming from the subacromial space (another reference to this 15 same continuing problem considered by Dr. Luzi at the December, 1998 visit). This comment about “satisfactory position” was not true. As Dr. Luzi admitted in his testimony, x-rays do not and cannot show the degree of retroversion (R.827) and when Lohnas’ subsequent treating orthopedist took x-rays and these suggested significant retroversion (R.1032-1033) and plaintiff’s expert opined similarly (R.1243). Dr. Luzi said that he would see her as needed (R.886), again he expected continuing problems and treatment. Her shoulder was so bad in January, 2000, that she needed a “suicide knob” on the steering wheel of her car (R.888). When she drove, she could not fully elevate her left arm to turn the wheel. She used a “suicide knob” to turn the steering wheel (R.888). Dr. Luzi recommended that she receive this device (R.888). At this point in time, her shoulder was so bad that when she got in the car, she would have to reach over her body with her right arm to grab the door to close it – she did not have enough full range of motion of the left arm to reach out and get the door (R.506). This was just a year after her surgery (R.507). She did not have to do this prior to Dr. Luzi’s surgery (R.507). Dr. Luzi’s surgery had actually made her shoulder worse. At this point, Lohnas was just 41 years old. Lohnas next saw Dr. Luzi on August 21, 2001 (R.889). Her forward flexion was now only 45 degrees (R.889). X-rays were read by Dr. Luzi and he said that 16 the humeral head appeared to be in the glenoid (R.889). Dr. Luzi noted that she may require further operative treatment (R.889). Dr. Luzi told Lohnas that deterioration of the glenoid might explain her condition – the loss of both motion and strength (R.530). This was not true. The excessively retroverted humeral head implant was what was destroying her rotator cuff and glenoid and that is what explained her condition. At the next visit of September 4, 2001 (R.891), he found that the CT scan was suggestive of a rotator cuff tear with degenerative changes in the acromial joint and recommended an injection which he did (R.891). Lohnas was to get back to him regarding surgery for a possible rotator cuff repair (R.891). Dr. Luzi told her that if injections did not help with the pain, that rotator cuff repair surgery was something that they might have to consider (R.537-538). Lohnas saw Dr. Luzi again on October 30, 2001 (R.539). She told him that the Cortizone shot or the injection did not provide the relief she had expected (R.539). Her forward flexion was only 75 degrees (R.892). Dr. Luzi recommended acromial decompression and rotator cuff repair (R.892). Lohnas did not talk to anyone else about the rotator cuff repair surgery before she underwent the surgery other than Dr. Luzi (R.543). She did not go anywhere for a second opinion (R.543). As Lohnas indicated, Dr. Luzi was her 17 doctor (R.543). She had gone to him to have the shoulder surgery (R.543-544), she went back to him to take care of it (R.544). She assumed that he knew what he was doing in taking care of her and what was the next step (R.544). As Lohnas testified: “I mean, he was my doctor. He had done the initial surgery. He knew the shoulder. I went back to him for care.” (R.544) She did not consider going to anybody else for another opinion (R.545). Dr. Luzi performed surgery for acromial decompression on January 3, 2002 (R.545). The consent for surgery also included possible rotator cuff repair (R.549). Lohnas next saw Dr. Luzi on January 11, 2002 (R.893). Dr. Luzi went over the surgery and explained to her what the decompression was and that he had to take part of the tip of the collar bone off to give more space (R.555). Dr. Luzi also told her that the rotator cuff tear was not as bad as he thought and he was able to repair it without grafting (R.555). Dr. Luzi noted that x-rays showed that the humeral head component was high riding but well cemented (R.893). He recommended physical therapy (R.893) and he saw her again on February 19, 2002 (R.894). Forward flexion was just 45 degrees (R.894). Lohnas again saw Dr. Luzi on April 2, 2002. Her forward flexion was only 75 degrees (R.895). He noted that she would have “periodic symptoms due to her degenerated rotator cuff,” that he would see her back as needed (R.895-897), that 18 her problem was “long standing and chronic” (R.897), and that “… she would most likely need further surgery in the future due to her young age and need for revision shoulder replacement versus fusions” (R.897). He noted that he was to see her back as needed (R.897). Shortly thereafter, Lohnas contacted Dr. Luzi about her need for a TENS unit, an electrical muscle stimulation device, for the disuse atrophy of her arm and shoulder muscles and Dr. Luzi recommended same in May, 2002 (R.957). Consequently, contrary to defendants-appellants’ argument, her treatment by Dr. Luzi for the left shoulder symptomology did not end on April 2, 2002. When Lohnas next saw Dr. Luzi on September 5, 2003, her forward flexion was only 80 degrees. She was having problems, pain (R.571-572). Since the last visit, she was having problems (R.572). She did not contact Dr. Luzi in the interim because he had told her she was going to have problems (R.572). She did not see any other healthcare practitioner for her left shoulder since the last visit (R.572). Dr. Luzi interpreted x-rays done on September 5, 2003 that there was satisfactory position of the hemiarthroplasty (R.209) and told Lohnas this (R.580). This was not true. Dr. Luzi also noted x-rays showed the hemiarthroplasty butting against the acromion (R.209). This was significant because it demonstrated that the subacromial decompression surgery had not worked. She still needed treatment. 19 In his self-serving Affidavit, Dr. Luzi only states that he did not contemplate any further treatment “at this time” (R.308). But that does not mean he did not expect to see her and treat her later once she returned as needed. In fact, the Record fails to contain any statement by Dr. Luzi that he did not expect Lohnas to return for further treatment. After all, her problems were “longstanding and chronic” as noted by Dr. Luzi (R.897), and further shoulder surgery was contemplated for both the rotator cuff and acromion problems at the previous visit of April 2, 2002 (R.897). C. Lohnas Continued to Place Her Trust and Confidence in Dr. Luzi Despite Not Seeing Him During the Alleged Gap of September 5, 2003 and April 28, 2006. Between the visit of September 5, 2003 and the next visit of April 28, 2006, Lohnas was doing “terrible” (R.591). Pain was getting bad, range of motion was getting worse, and she was wearing a sling (R.591). She did not go back to Dr. Luzi sooner because she had gotten tired of hearing the same thing but once it got so bad that she did not have a choice, she went back to him again (R.591). She went back to see Dr. Luzi even though Dr. Varallo had told her that he had stopped referring people to Dr. Luzi because Dr. Luzi would put them off (R.592). As Lohnas testified, “Dr. Luzi was all I had so I went back to him” (R.592). She went to see Dr. Luzi at this time because the shoulder had become the worst it ever was 20 (R.597-598). Of course, she went back to him because she did not know why she was having problems because Dr. Luzi had concealed facts from her about the malpositioned humeral head implant and what it was doing to her rotator cuff and glenoid. During this period of time, September, 2003 to April, 2006, she saw many other doctors for various other problems (R.389-390, 598-603) but she did not see them for her shoulder problems because Dr. Luzi was her doctor for her left shoulder. Lohnas returned to see Dr. Luzi, as needed, on April 28, 2006 when her pain worsened (R.615). She had not seen him sooner because she had kind of tried to learn to live with the shoulder and knew that she was going to have problems and she just had to kind of deal with it (R.586), and thought that he was going to just keep telling her the same thing (R.586). D. Lohnas’ Last Visits With Dr. Luzi and Dr. Douglas. When Lohnas saw Dr. Luzi on April 28, 2006, her complaints were pain and lost motion (R.620). She had difficulty moving the arm, lifting with it and washing with it. She couldn’t even reach under her right arm with her left hand (R.622). She could not sleep on her left side (R.624). She could only lift something up if it 21 weighed just a couple of pounds at most (R.626). She even had trouble dressing and putting on a jacket (R.627-629). When she saw Dr. Luzi at this visit, he told her that he did not do shoulders anymore (R.643). Dr. Luzi noted that she had continued to have discomfort since he last saw her in September, 2003 (R.901). He noted her forward flexion was only 75 degrees (R.901). He noted that there appeared to be erosion of the glenoid, the same problem as noted previously (R.901). His assessment was that he felt that Darlene most likely had “ongoing symptoms due to her degenerative left glenoid” (R.901). He recommended that she see one of his partners to consider performing a “revision total shoulder” which might involve resurfacing the glenoid (R.901). Thus, on this last visit, Dr. Luzi continued to consider surgery of revision total shoulder which he had considered four years earlier on the April 2, 2002 visit (R.897) to deal with the same conditions of the continuing rotator cuff and glenoid problems. This visit was certainly continuous treatment for the same conditions involved in the previous visits of April 2, 2002 and September 5, 2003. Thus, contrary to appellants’ arguments, there was no “gap” beginning on either April 2, 2002 or September 5, 2003. Lohnas saw Dr. Douglas on May 10, 2006. Dr. Douglas noted shoulder pain most likely due to glenoid wear (R.981), and felt that she might benefit from a 22 reverse ball and socket shoulder and referred her to Dr. Iannotti at the Cleveland Clinic (R.981), but Lohnas’ insurance would not cover the referral to the Cleveland Clinic (R.650-652), so she wound up seeing Paul D. Paterson, M.D., an orthopedist specializing in shoulder surgery (R.652-653). She first saw Dr. Paterson on July 14, 2006 (R.1153). E. Dr. Luzi’s Office Failed to Retain Certain X-rays. Before going to see Dr. Paterson, she went to Northtowns Orthopedics, Dr. Luzi’s office, to get her x-rays and they were given to her in a large envelope (R.653). According to Dr. Luzi, his office’s record retention policy which included x-rays was to retain records for seven years (R.812), and destroy them only if the patient had not been seen for seven years (R.812-814). Consequently, when Lohnas saw Dr. Luzi on September 5, 2003, and on April 28, 2006, all of her x-rays should still have been in Dr. Luzi’s office (R.816). Dr. Luzi’s claim that the passage of time has prejudiced him is therefore bogus. His office lost or destroyed Lohnas’ x-rays. Dr. Luzi had no explanation why certain of Lohnas’ x-rays were missing (R.816). Furthermore, all of the x-rays taken over the years showed that the implant was solidly in place, well cemented, with no evidence of loosening (R.209, 208, 207, 206, 204). If the implant never moved, then how can the passage 23 of time prejudice Dr. Luzi because any x-ray taken after his care ended would continue to show the same position of the implant. So where is the prejudice? F. Lohnas’ Treatment by Dr. Paterson. Lohnas first saw Dr. Paterson on July 14, 2006. Dr. Paterson testified pursuant to subpoena as a non-party subsequent treating surgeon (R.992-1150). Dr. Paterson is a 1985 graduate of the University of Michigan (R.997) and a 1992 graduate of the University of Buffalo School of Medicine (R.999). He did a six year residency in orthopedics at the State University of New York at Buffalo and completed his residency in 1998 (R.999). He then did a hand and upper extremity fellowship with Harvard at the Brigham Women’s & Children’s Hospital (R.1000- 1001). Dr. Paterson had three x-rays taken (R.1014-1015, and R.1238-1240), Appendix B. Dr Paterson immediately saw that the degree of retroversion on the July 14, 2006 films was a “far bit more than the normal 30 to 45 degrees” (R. 1032). It was more than 45 degrees retroverted (R.1032-1033). He was not able to say how much more from the film itself (R.1033), but it was “significant” (R.1033). The second page of these films (R.1239), Appendix B, showed that one would have to have been trying to put their hand behind their back to try to get the humeral head to look like that on this view! (R.1033) The next film (R.1240), 24 Appendix B, showed the humeral head was clearly pointing posteriorly! (R.1033) Consequently, Dr. Luzi’s repeated representations over the years that the implant was in satisfactory position were simply not true! Dr. Paterson explained that when the humeral head implant is put in pointing too far posteriorly, that it puts a tremendous amount of strain on the rotator cuff, particularly the posterior or the back portions of the cuff which can lead to tearing of the rotator cuff, loss of the function of the rotator cuff, and increased wear because now you are sort of pulling more and pulling all the forces back into the back half of the glenoid (R.1033-1034). By increased wear, Dr. Paterson meant increased wear of the glenoid (R.1034). This establishes that Dr. Luzi had repeatedly misrepresented the cause of Lohnas’ deteriorating shoulder over the years, and evidences the ongoing conditions of a deteriorating rotator cuff and glenoid. During his deposition, Dr. Paterson traced an outline, a triangular shaped outline, and wrote the word glenoid with an arrow pointing to the glenoid on the first page of the three x-rays of July 14, 2006 (R.1238), Appendix B. He wanted to check the glenoid on this x-ray because long term studies have shown that you can get wear of the glenoid by reason of the artificial head of the arthroplasty rubbing up against it and coming in contact with the glenoid (R.1021-1022). The very 25 same condition and concern noted by Dr. Luzi in April, 2002 and September, 2003. Dr. Paterson actually outlined what the humeral head should have looked like and wrote the word oversized on the humeral head (R.1051-1053, 1238), Appendix B. He could tell this from the x-ray of July 14, 2006 because he knows where the head is supposed to finish relative to the bony landmarks around it and the head was “well beyond” “those landmarks” (R.1053). The humeral head in Lohnas’ shoulder was 2 to 4 mm bigger than he would have put in (R.1053). This oversized head which Dr. Luzi used added to the issues of pulling on Lohnas’ rotator cuff (R.1054-1055). If one over stuffs the joint and/or malpositions the rotation of it that can lead to stresses on the rotator cuff that will lead the rotator cuff to fail (R.1055). This means that Dr. Luzi misrepresented the cause of the destruction of Lohnas’ rotator cuff and glenoid. According to Lohnas, at her next appointment with Dr. Paterson, July 28, 2006, Dr. Paterson said that he believed he could help her. He said that the shoulder was too big and out of position (R.665). Dr. Paterson told Lohnas that he would be taking the old implant out and putting a new one in (R.666). Dr. Paterson wanted to see how bad the glenoid part of the shoulder had become (R.668-669). Dr. Paterson’s surgery would be a revision of what Dr. Luzi had done (R.669). It would be a “salvage operation” (R.671-672). 26 According to Dr. Paterson, when he saw Lohnas on July 28, 2006 (R.1026), he noted that her CT scan showed degenerative changes involving the native glenoid (R.1026). This CT scan showed the positioning of the stem implant and showed that it was retroverted, that the humeral head was pointed out the back (R.1026). Additionally, he said the previous x-rays (July 14, 2006) showed “orientations” that were suggestive that retroversion was a possibility (R.1026- 1027). He noted that the humeral head in its normal position is twisted a little bit, what is called retroverted, towards the back to match the angle of the glenoid and that anatomic studies demonstrate that that retroversion is usually between 30 and 45 degrees (R.1027-1028). If one’s arm is pointed straight out with the fingers straight ahead the humeral head or ball would be twisted towards the back about 30 to 45 degrees (R.1028). That is the optimal anatomic position (R.1028). Dr. Paterson noted in his record for July 28, that he would consider a revision hemiarthroplasty versus a total shoulder replacement and that he would need to assess the rotator cuff to see if it was intact (R.1034-1036). By revising the hemi-arthroplasty, that meant he was going to take out the stem involved and put a new one in (R.1035). Once he took out the stem and ball he would then decide whether to replace it with a new stem and head versus doing a total shoulder replacement (R.1036-1036). His note of “change version with implant” meant that 27 he was going to change the version of the implant (R.1036). He was convinced that it was retroverted, that it was pointing out the back, and that in order to try and get her a shoulder that functioned well with minimum pain and best function that had to be changed (R.1036-1037). Dr. Paterson testified that he was convinced that the humeral head was malpositioned, significant retroversion, and he did not have any doubt about it (R1038). He noted that when he said that he would change the version, that meant that he was going to correct that degree of retroversion that he had found (R.1039). He wanted to do this because Lohnas was describing incapacitating pain that was affecting the quality of her life. This was the same kind of pain and symptomology which Lohnas experienced during the time period of April 2, 2002 to April 28, 2006. According to his July 28, 2006 record, Lohnas was on Tylenol with Codeine #3 – a narcotic pain reliever (R.1039-1040). Dr. Paterson testified that Codeine was a narcotic and that he, as her physician, felt that he could do something for her to get her off that habit forming drug (R.1050). Dr. Paterson’s next saw Lohnas on November 27, 2006 (R.1041). He noted that her flexion was just 35 degrees versus 180 as normal (R.1042). That is a significant disability of the shoulder (R.1043). He noted that the excessive retroversion and the larger size of the humeral head all combined to create 28 unnatural forces on the rotator cuff to lead to a premature chronic rupture of the rotator cuff and failure of the implant and the prosthesis all of which ultimately was related to the significant retroversion which he had found (R.1044). This proves that all of Dr. Luzi’s representations as to what was going on with Lohnas’ shoulder during the years 1999 through 2006 were false. At this visit of November 27, 2006, Lohnas had only 35 degrees of abduction which is bringing the arm out to the side of the body and raising it up. The high end of abduction is 180 degrees. That was significant and related to the retroversion (R.1045). Dr. Paterson noted that the excessive retroversion of the component along with some of the other issues around the component created forces that the rotator cuff could not sustain and led to the rupture of the rotator cuff (R.1045-1046). Dr. Paterson testified that Lohnas had been walking around with a humeral head that was 90 degrees retroverted for a period of at least seven years (the same condition for seven years!) (R.1140) Dr. Paterson indicated that he did not need to see any of Lohnas’ previous films to determine the 90 degrees of retroversion that he found in Lohnas’ left shoulder (R.1144-1145). Further proof that Dr. Luzi’s claimed prejudice due to missing films is bogus. And, when he did surgery on November 29, 2006, he actually saw the degree of retroversion (R.1145). Thus, without regard to any of Dr. Luzi’s records or any of the previous 29 films, he was able to determine the degree of retroversion when he looked at her shoulder after he exposed it in the surgery and it was 90 degrees (R.1145). He did that by actually looking at the epicondyles and using those as landmarks to determine the 90 degrees (R.1145). Dr. Paterson clarified his statement as to 90 degrees by indicating that what he found in his surgery was that it may have been at 80 degrees retroversion or it may even have been at 110 and he sees a lot of crazy implants put in (R.1146-1147). Post Dr. Paterson’s surgery, Lohnas’ shoulder became chronically unstable because of the rotator cuff tear. Post-operatively, Dr. Paterson saw Lohnas on various dates from December 11, 2006 (R.1071-1072) through November 30, 2007 (R.1083), when he noted she had some evidence of anterior superior escape (R.1084). That is when the humeral head does not stay where it is supposed to and when the deltoid muscle fires it brings the humeral head up and forward so that you had superior and anterior escape (R.1084). This happened because her rotator cuff was not functioning or functioning very poorly (R.1085). The next step for her would be a reverse total shoulder (R.1085). (She was then only 49 years old.) Dr. Paterson continued to see Lohnas on various dates through January 9, 2012 (R.1092-1102). At the January 9, 2012 visit, he noted that she had fallen and that was the straw that broke the camel’s back (R.1102). He noted that her 30 shoulder was more susceptible to injury and that she was an accident waiting to happen (R.1103-1104). He recommended a reverse total shoulder surgery (R.1104-1105) which he performed on March 14, 2012 (R.1106). She was just 54 years old. G. Dr. Luzi’s Self Serving and Conclusory Affidavit and Testimony. In his Affidavit (R.302-311), Dr. Luzi claimed that during the surgery of January 19, 1999, he obtained the correct degree of retroversion (R.303-304). This was not true. Dr. Paterson testified that he actually saw the humeral head implant during his surgery of November 29, 2006 and, referencing the head in relation to the epicondyles, determined that the head was retroverted out of position at 80 degrees to as much as 110 degrees – therefore 40 degress to as much as 70 degrees out of position (R.1145-1147). Dr. Luzi also claimed repeatedly that post-op x- rays showed that the humeral head was in good position (R.305). This was also contradicted by Dr. Paterson’s testimony where he said that the x-rays which he took showed retroversion (R.1026-1027, R.1032-1033, R.1036-1038). Dr. Luzi also testified that one would need to do a CT scan showing the epicondyles to be able to see the degree of retroversion (R.820-821), but he never ordered a CT scan so how could he say the humeral head was in good position in terms of retroversion? 31 Dr. Luzi also claimed that on February 23, 1999 Lohnas noticed improvement of her symptoms and “her range of motion was satisfactory.” (R.305) That was not so. Lohnas testified that she believed that her range of motion never improved after the surgery from what it had been before the surgery (she could not raise her arm above her shoulder prior to surgery or after). Dr. Luzi wrote a letter about this visit dated March 2, 1999 (R.174) wherein he noted that she only had forward flexion to 90 degrees (she could not get her arm above her shoulder) and only 50 degrees of external and internal rotation (R.174) – far from what would be satisfactory. Dr. Luzi claimed that since Lohnas’ shoulder never dislocated, there could not have been any excessive retroversion (R.307, R.310). However, Dr. Paterson testified that this was not true because there are other muscles which would hold the humeral head in place despite the excessive retroversion (R.1137-1138). Dr. Luzi also claimed that when Lohnas saw Dr. Douglas on May 15, 2006, Dr. Douglas did not indicate that there was excessive retroversion (R.310). Of course, Dr. Douglas was one of Dr. Luzi’s partners at defendant-appellant Northtowns. Should anyone really believe that Dr. Douglas would have stated that there was excessive retroversion which would have indicated malpractice on the part of his partner Dr. Luzi? And, if Dr. Douglas was of that opinion, then why 32 didn’t appellants, which include the medical group, Northtowns, submit an affidavit from Dr. Douglas attesting to this opinion? Certainly, as Dr. Douglas is part of the defendant Northtowns, and certainly within the control of Northtowns, the failure to submit an affidavit from Dr. Douglas is akin to the failure to call an interested witness which allows the inference to be drawn that if Dr. Douglas was to testify or give an opinion, that such would not have been helpful to Dr. Luzi. H. Plaintiff’s Expert Clearly Contradicted Dr. Luzi’s Claims. Dr. Luzi’s self-serving and conclusory affidavit and testimony was also contradicted by the Affidavit of plaintiff’s expert (R.1242-1244). Plaintiff’s expert, board certified by the American Board of Orthopedic Surgery and a member of the Academy of Orthopedic Surgeons, opined that Dr. Luzi’s excessive retroversion of the humeral head at 90 degrees was a departure from the standard of orthopedic surgical care, that this 90 degrees of retroversion contributed to the attenuation of Lohnas’ rotator cuff over the years and that the x-rays taken over the years by Dr. Luzi suggested retroversion and that Dr. Luzi should have ordered a CT scan that would include the epicondyles to determine the degree of retroversion (R.1243). He contradicted Dr. Luzi’s claims that the humeral head was in good position (R.1244). He also opined that Lohnas suffered from the same condition of an excessively retroverted humeral head and its associated symptomology all 33 during her continuous course of treatment by Dr. Luzi (R.1244). I. Dr. Luzi’s Misrepresentations and Concealment. Dr. Luzi made many misrepresentations over the years. These are as follows: Dr. Luzi, at the January 29, 1999 first post-op visit, told Lohnas that the surgery had gone well (R.515). This was not true. The humeral head was significantly retroverted. Dr. Luzi’s interpretation of the x-rays of January 28, 1999, and his letter of January 28, 1999 – “satisfactory position of the humeral component” – not true – it was 90 degrees retroverted, i.e., unsatisfactory position; June 15, 1999 visit – Dr. Luzi told her that it would take time for her to regain her motion and for the pain to reside (R.498-499) – this was not true because she would not regain motion and the pain would not reside because of the severely retroverted humeral head causing damage to the rotator cuff and glenoid; At the August 21, 2001 visit, Dr. Luzi said that her glenoid might be getting worse and that might account for some deterioration of her condition (R.530) – this was not true because it was the rotator cuff that was deteriorating as a result of the severely retroverted humeral head which also caused a problem with the glenoid; At the April 2, 2002 visit, Dr. Luzi said she would have periodic symptoms due to degenerative rotator cuff (R.895-897) – not true – the true cause was the excessively rotated humeral head implant; 34 At the visit of September 5, 2003, Dr. Luzi told Lohnas that as far as he could see, the prosthesis was still in proper position – satisfactory position (R.580). This was not true. It was severely retroverted as found by Dr. Paterson; and Even at her last visit with Luzi of April 28, 2006, Dr. Luzi continued to represent that it was her glenoid that was deteriorating as a result of the progression of her arthritis (R.901) – this was not true because her problems were not the result of the progression of her arthritis but rather the severely retroverted humeral head and the ongoing damage it was causing to her rotator cuff and glenoid. J. Summary. Lohnas treated with Dr. Luzi for the same conditions for over seven years. The same conditions consisted of osteoarthritis of the left shoulder and, as a result of Dr. Luzi’s malpositioning of the humeral head in his surgery of January 19, 1999, excessive retroversion of the humeral head which caused all of her problems, including significantly reduced flexion and abduction, internal and external rotation, loosening of the joint, and deterioration of her rotator cuff and glenoid. As early as Dr. Luzi’s first visit with Lohnas of December, 1998, there was a question of doing both a subacromial decompression and total shoulder replacement. Thus, the condition that her shoulder was in as a result of the 90 degrees or more of retroversion was the same condition for which she treated with Dr. Luzi for over seven years. He had over seven years to correct this but never 35 did. The basis for the continuing treatment toll of the statute of limitation is to allow a physician an opportunity to cure his error and help the patient. Thus, this case presents as a classic example of why this rule is a good one and why the statute of limitations should be tolled in this case. 36 ARGUMENT POINT I QUESTIONS OF FACT PRECLUDE THE STATUTE OF LIMITATIONS DEFENSE BASED ON CLAIMS OF NO CONTINUOUS TREATMENT AS OF JUNE 15, 1999, APRIL 2, 2002 OR SEPTEMBER 5, 2003 AND THIS ISSUE IS BEYOND THE SCOPE OF REVIEW A. The Continuous Treatment Issue is Beyond the Court of Appeals Scope of Review. In Allende v. New York City Health and Hospitals Corp, 90 N.Y.2d 333 (1997), the New York Court of Appeals held that where a trial court and Appellate Division has found that the requirement of continuous treatment has been satisfied, such affirmed factual findings are beyond the scope of review of the Court of Appeals so long as the facts are supported by some evidence in the record, citing Stiles v. Batavia Atomic Horse Shoes, 81 N.Y.2d 950, 951. See also CPLR § 5501(b). In the instant case, since Supreme Court’s findings as to continuous treatment were affirmed by the Fourth Department, the sole question before the Court of Appeals should be whether the affirmed facts of continuous treatment are supported by some evidence in the record. In the instant case, as the Statement of Facts demonstrates, Lohnas clearly has presented evidence that her shoulder conditions continued from her first visit with Dr. Luzi in December, 1998 through the last visit of April 28, 2006. These 37 facts demonstrate that she had ongoing degenerative arthritis and ongoing degeneration of both her rotator cuff and glenoid. These facts demonstrate that these ongoing conditions were caused by the excessively retroverted humeral head implant, a condition of her shoulder which never changed and continued. Clearly, these facts amount to “some evidence” to support the lower courts’ findings as to continuous treatment. Thus, the lower courts’ finding as to continuous treatment should be beyond the Court of Appeals scope of review. B. There Was Continuous Treatment for the Same Conditions Over the Years – There Were No Gaps in Treatment. The New York Court of Appeals has provided more than ample guidance in various decisions as to how to apply the continuous treatment doctrine since the seminal decision of Borgia v. City of New York, 12 N.Y.2d 151, (1962). These cases establish the following principles. It is the last day of continuous treatment, not the date of malpractice, which controls and it would be absurd to require a patient to interrupt corrective treatment by her physician for the same condition by requiring plaintiff to leave that physician’s care and institute suit. Borgia v. City of New York, 12 N.Y.2d 151 (1962). 38 Only where the medical service rendered is discrete and complete can the beginning of a gap in treatment be found to exist so as to preclude the application of the continuous treatment doctrine. Davis v. City of New York, 38 N.Y.2d 257 (1975). Even where a physician discharges a patient from care, if the patient initiates a timely return visit for the same condition or conditions, continuous treatment may be found and where questions of fact exist on the continuous treatment issue, summary judgment on grounds of the statute of limitations must be denied. McDermott v. Torre, 56 N.Y.2d 399 (1982), citing Ugarriza v. Schmeider, 46 N.Y.2d 471. Even where there is a gap in treatment exceeding the two and a half year statute of limitations, that is not dispositive. It is only where there is no evidence that plaintiff and physician expected or intended continuing care that continuous treatment will be found not to exist. Curcio v. Ippolito, 63 N.Y.2d 967 (1984). Even when a patient fails to keep an appointment, since the fact that an appointment was made evidences an intent and expectation of continuing treatment, the last date of continuous treatment will be considered to be the date of the unkept appointment. Richardson v. Orentreich, 64 N.Y.2d 896 (1985). 39 An apparent gap of three years or more, longer than the statute of limitations, does not bar the application of the continuous treatment doctrine which should only be held not to apply when there is no evidence of an expectation of continuous treatment for the same condition. Meath v. Mishrick, 68 N.Y.2d 992 (1986). Even where a gap in treatment exists of 40 months, longer than the statute of limitations, that is not dispositive – it is only where plaintiff has failed to demonstrate a continuing diagnosis and continuing relationship with the physician that continuous treatment should be found not to exist. Rizk v. Cohen, 73 N.Y.2d 98 (1989). Where the patient does not see the physician on various visits for the same condition, the continuous treatment doctrine is not applicable. Nykorchuk v. Henriques, 78 N.Y.2d 255 (1991). A gap in treatment of 34 months, four months longer than the statute of limitations, is not per se dispositive – it was the mere routine or periodic exams that did not establish continuity of treatment for the same condition. Massie v. Crawford, 78 N.Y.2d 516 (1991). 40 Where the record in the case does not reflect that the plaintiff contemplated, or had, a continuing physician/patient relationship with defendant, the continuous treatment doctrine does not apply. Cooper v. Kaplan, 78 N.Y.2d 1103 (1991). A single discrete misreading of a genetics test cannot constitute part of continuing prenatal treatments. Jorge v. New York City Health and Hospitals Corp, 79 N.Y.2d 905 (1992). An infant’s annual visits to the doctor will not be considered treatment continuous to the delivery of the infant which resulted in Erb’s palsy. Ganess v. City of New York, 85 N.Y.2d 733 (1995). Even though a gap in treatment may exceed the statute of limitations, the factual question of continuous treatment is controlling and the issue must be decided on the basis of whether the patient and the physician reasonably expected and anticipated further treatment for the same condition. Cox v. Kingsboro Medical Group, 88 N.Y.2d 904 (1996). If there is further treatment anticipated by both the patient and the physician, continuous treatment must be found to exist – continuous treatment does not exist if there is proof that the patient never intended to go back to the physician or hospital. Allende v. New York City Health and Hospitals Corp, 90 N.Y.2d 333 (1997). 41 There can be no continuous treatment if the physician fails to make a diagnosis, and thus does not treat, but only if the symptoms do not continue on the visits to the doctor. Young v. New York City Health and Hospitals Corp, 91 N.Y.2d 291 (1998). Applying these principles to the instant case is straightforward. There is overwhelming evidence that Lohnas continued to treat with Dr. Luzi during the course of all of her visits for the same conditions of degenerative arthritis, deterioration of her rotator cuff, and deterioration and destruction of her glenoid. Such evidence was found by both the trial court and Appellate Division. On Lohnas’ very first visit with Dr. Luzi in December, 1998, he contemplated that she would eventually need a total shoulder replacement. Despite the partial shoulder replacement which he did on January, 1999, and the subacromial decompression he did on January 3, 2002, she never had any significant improvement of her symptomology. Through all these years, she continued to experience significant pain and significant loss of motion. There was only one visit over the years where her range of motion was above 90 degrees. Throughout this course of treatment, on various visits, Dr. Luzi continued to contemplate Lohnas’ need for a total shoulder revision. She was never improving. She was never getting better. This explains and evidences both Lohnas’ expectation, intent and need to continue to 42 return to Dr. Luzi for treatment as well as Dr. Luzi’s expectation and intent that he would be seeing her again. His repeated directions to her return “as needed” do not amount to evidence that treatment at any one of those return as needed visits meant that treatment for any specific condition had ended. At Point II of their Brief, appellants argue that the September 5, 2003 office visit was discrete, complete, and for a check of her condition, and did not continue treatment provided at the prior visit of April 2, 2002. In so arguing, appellants first state that Lohnas’ first course of treatment began with the shoulder surgery in January, 1999 and ended with the office visit of June 15, 1999. But appellants ignore the facts that Dr. Luzi, on June 15, 1999 specifically recommended that she see him on a yearly basis for followup (R.499- 500, R.885), that it would take time for Lohnas’ range of motion to improve (R.499-500) and that he would continue to inform Dr. Varallo of her progress. These facts establish that Dr. Luzi’s treatment of Lonhas’ shoulder was continuing and that both she and Dr. Luzi expected it to continue. Appellants also ignore the facts that Dr. Luzi had malpositioned the humeral head implant which would go on to cause destruction of her rotator cuff and glenoid which was what caused the ongoing need for continuous treatment for all the years thereafter. There should be “no doubt,” as Supreme Court found (R.18-19), that the same problems and 43 symptoms she experienced over the years were caused by the same condition of the malpositioned humeral head implant and that Dr. Luzi continued to see Lohnas for the same problems and symptoms through all the years involved. Appellants next state that the second course of treatment was for glenoid wear which began in August, 2001 leading to a rotator cuff surgery in January, 2002 followed by post-op visits ending on April 2, 2002. In so stating, appellants ignore the fact that before August, 2001, Dr. Luzi indicated that Lohnas might have impingement type symptoms and might ultimately require subacromial decompression (R.884), and ignore the fact that Dr. Luzi also considered this a possibility at the very first visit in December, 1998 (R.880). As Dr. Luzi admitted, subacromial decompression would be to allow more room for the humeral head so as to avoid pressure upon and deterioration of the glenoid. Appellants also ignore the facts that on April 2, 2002, Dr. Luzi noted that she “would have periodic symptoms due to her degenerated rotator cuff” (R.895), that her problem was “longstanding and chronic” (R.897), and that “… she would most likely need further surgery in the future …” (R.897). Thus, the same problems continued beyond April 2, 2002. Appellants next argument that September 5, 2003 was not for the same condition or complaints that he saw her for at the previous visit of April 2, 2002 44 fails because of these facts as well. In so arguing, appellants ignore the fact that Dr. Luzi expected to see her again as of April 2, 2002. Appellants also ignore the fact that x-rays done on September 5, 2003 showed the implant “butting against the acromion” (R.898), the exact same problem that was causing the destruction of her rotator cuff and glenoid which clearly was an ongoing condition since the surgery of January 19, 1999 as attested to by both Dr. Paterson (R.1033-1035) and plaintiff’s expert (R.1244). Obviously, the subacromial decompression surgery of January 3, 2002 had not solved the problem. It continued. These facts clearly establish that Lonhas’ problems both before and after April 2, 2002, and continuing through and after September 5, 2003 were for the same problems related to the degeneration of her rotator cuff and deterioration of her glenoid. Whether or not Lohnas returned on September 5, 2003 because she was “pushed against the wall” by one of her children, or for “just a check up of her condition,” misses the indisputable evidence that Dr. Luzi, on September 5, 2003, was continuing to treat Lohnas for the same problems existing since the January 19, 1999 surgery. Furthermore, the testimony of Dr. Paterson, and respondent’s expert affidavit clearly demonstrate that Lohnas’ continuing problems and symptomology over this time period were all related to and caused by the same condition, the malpositioned and excessively retroverted humeral head implant. 45 Consequently, appellants’ argument that the September 5, 2003 visit was somehow the beginning of a separate and distinct new course of treatment, not continuous to all of the conditions and treatment before, must fail. Where issues of fact exist as to whether there is continuous treatment, the existence of such factual issues preclude granting summary judgment. McDermott v. Torre, 56 N.Y.2d 399 (1982), citing Ugarriza v. Schmeider, 46 N.Y.2d 471. C. The Court of Appeals Should Not Rule, For the First Time, That a Gap in Treatment Exceeding the Statute of Limitations is Dispositive and Bars Application of the Continuous Treatment Doctrine. Assuming arguendo that the Court of Appeals wishes to rule on the issue of whether a gap in treatment exceeding the statute of limitations is dispositive, respondent Lohnas notes that the New York Court of Appeals has never so held and should not so hold because such a holding would undercut the very purpose of the continuous treatment exception, that being to give both the patient and the doctor an opportunity to correct any malpractice which might have occurred and avoid an unnecessary lawsuit. Such a holding would force patients to discontinue treatment where corrective treatment might have been possible and force patients to commence suit when such suits might not be necessary. Borgia v. City of New York, 12 N.Y.2d 151 (1962). 46 Since the Court of Appeals decided Borgia, there have been several cases where the gap exceed the statute, but in each case, the Court of Appeals decided the case on whether the facts demonstrate continuing treatment for the same condition. In Curcio v. Ippolito, 63 N.Y.2d 967 (1984) – Court declines to hold that a gap in treatment exceeding the statute of limitations is dispositive – continuous treatment not found only because patient was discharged from care which broke the continuity. In Rizk v. Cohen, 73 N.Y.2d 98 (1989) – no continuous treatment found only because plaintiff failed to demonstrate proof that both the plaintiff and the doctor contemplated further treatment. The Court declines to hold that a 40 month gap in treatment was dispositive despite the lower court’s finding in this regard. In Cox v. Kingsboro Medical Group, 88 N.Y.2d 904 (1996), the Court again declined to hold that a gap in treatment exceeding the statute of limitations is dispositive. It is clear from these cases that the New York Court of Appeals has never held, despite several opportunities to do so, that a gap in treatment which exceeds the statute of limitations is dispositive. As the Court has emphasized in these cases, the critical inquiry continues to be whether there is evidence that the patient 47 continues to treat for the same condition or conditions and continues to place trust and confidence in the physician which would allow the physician to cure the patient or correct his error and avoid forcing the patient to commence a malpractice suit. The First, Third and Fourth Departments have consistently applied Court of Appeals precedent as to what constitutes continuous treatment and whether a gap in treatment exceeding the statute should control. FIRST DEPARTMENT For example, in Chestnut v. Bobb-McKoy, 94 A.D.3d 659 (1st Dept. 2012), the First Department found that where a patient returns to a physician for symptoms related to and suggesting lung cancer, continuous treatment exists because the symptoms continue even though there was no diagnosis or treatment. In Devadas v. Niksarli, 130 A.D.3d 1000 (1st Dept. 2014), a gap in treatment of 33 months, nine months longer than the statute of limitations, was held not dispositive because the patient demonstrated continuing treatment over the years for vision problems related to a lazik surgery performed by the physician and the Court so held even where there were no follow up appointments scheduled at various points in time during the treatment. Notably, the patient in that case had not returned at sooner points in time because she had “learned to adapt” to her 48 vision problems, a fact similar to Lohnas’ testimony that at various points in time during her care and treatment by Dr. Luzi she had tried to “live with” her shoulder. THIRD DEPARTMENT Fonda v. Paulsen, 46 A.D.2d 540 (3d Dept. 1975) is directly on point. In Fonda, as in the instant case, there were two alleged gaps in treatment, one for 20 months and the other for 32 months. The physician had performed a biopsy on plaintiff’s right buttock and pelvic area and the slides were read as non-cancerous. Despite the fact that this was a separate, distinct and complete act on the part of the physician, since the plaintiff on various occasions over the years returned and complained of soreness in the back and buttocks and evidenced a mass in the buttocks, the Court found that there were sufficient facts to constitute continuous treatment. The Third Department reasonably interpreted the rule of Borgia to mean that if at the time when the statute of limitations would have expired, a patient is still in a relationship of care or treatment with the physician for the same or related illnesses of injuries, the statute shall not be deemed to have commenced running so long as such treatment continues. Certainly, such facts are present in the instant case. Edmonds v. Getchonis, 150 A.D.2d 879 (3d Dept. 1989) is also on point and instructive. A dentist had done an implant in November, 1977, then installed a 49 lower bridge in August, 1978. Then, there was a 27 month gap to the next treatment or return visit of December 2, 1980 when the patient then remained under the dentist’s care through August, 1982. Suit was commenced within two and a half years of that last date. The Third Department found that the temporal gaps between visits was not excessive and relied upon the patient’s averments that she had continued to place her trust and confidence in the dentist’s care and that she did not consult any other dentist for her problems during these time periods. These facts mirror the facts in the instant case. The Court found, at the very least, that there were questions of fact as to whether the plaintiff’s return visits at various times were timely for purposes of establishing the required continuity. Again, following the various holdings of the New York Court of Appeals as noted above, gaps in treatment were not dispositive and the focus as to the application of the continuous treatment doctrine was on whether the patient is returning for the same condition or conditions and whether the patient continues to place trust and confidence in the physician. Again, in Siegel v. Wank, 183 A.D.2d 158 (3d Dept. 1992) the Third Department found that a 27 month gap was not dispositive and that plaintiff had sufficiently raised questions of fact as to whether the last visit with the physician was related to the same conditions for which she had seen him previously. The 50 Third Department so held, even though there was evidence that plaintiff had consulted other doctors for her condition, a far more compelling fact on this issue than Lohnas’ testimony, in the instant case, that she had not returned to Dr. Lohnas sooner because she had become discouraged with him or because he would just have told her the same thing. Finally, in Aulita v. Chang, 44 A.D.3d 1206 (3d Dept. 2007), the Third Department held that an 18 month gap in treatment was not dispositive because there was no evidence that the patient intended to abandon treatment with the urologist involved. In so ruling, the Third Department noted that the evidence must be viewed in a light most favorable to the plaintiff, the non-moving party, in finding that Supreme Court did not err in concluding that a question of fact existed with respect to the applicability of the continuous treatment doctrine. FOURTH DEPARTMENT In Shumway v. DeLaus, 152 A.D.2d 951 (4th Dept. 1989), the Fourth Department held that a gap in treatment that exceeds the two and a half year statute of limitations does not bar the application of the continuous treatment doctrine as a matter of law. The Fourth Department correctly cited this Court’s decision in Curcio, supra, as noted above, where the Court of Appeals found it unnecessary to 51 adopt that holding citing Curcio, at 969. The Court affirmed Supreme Court’s finding that there were questions of fact on the continuous treatment issue. In Davidson v. O’Brien, 21 A.D.3d 1330 (4th Dept. 2005), the Court held that Supreme Court had erred in granting summary judgment on the statute defense because plaintiff raised triable issues of fact as to continuous treatment noting that plaintiff had submitted evidence that return visits were contemplated by both decedent and defendant and that the defendant doctor had rendered treatment for symptoms indicating the existence of prostate cancer as to which treatment had initially been instituted. The Fourth Department’s decision in Hilts v. FF Thompson Health Systems, Inc., 78 A.D.3d 1689 (4th Dept. 2010) is also instructive and directly on point. The Court held that even in a failure to diagnose case, which means no treatment and therefore no continuous treatment, the continuous treatment doctrine should apply as long as the symptoms being treated indicate the presence of that condition. Certainly, Lohnas has demonstrated that her ongoing problems of degenerative arthritis, destruction of her rotator cuff, and deterioration of her glenoid, were all conditions which related to Dr. Luzi’s care and treatment during all of the visits when she saw him. Strikingly, the Fourth Department correctly reached this holding even though the course of treatment spanned seven years, as in the instant 52 case, and even though the patient had not actually seen the doctor for a period of 28 months. Finally, in Flint v. Zielinski, 130 A.D.3d 1460 (4th Dept. 2015), the Fourth Department found, again, that even where there is no diagnosis, and thus no treatment, a physician’s “monitoring” of a patient’s condition is enough to establish continuous treatment. SECOND DEPARTMENT At Point V of Defendants-Appellants’ Brief, pp.24-25, appellants claim that the Second Department has repeatedly held that where the interval in treatment exceeds the statute, treatment is not continuous as a matter of law. Appellants cite the Second Department cases of Bennin v. Ramapo Gen Hosp, 72 A.D.2d 736 (2d Dept. 1979), Barella v. Richmond Memorial Hospital, 88 A.D.2d 379 (2d Dept. 1982), Curcio v. Ippolito, 97 A.D.2d 497, aff’d 63 N.Y.2d 967 (1984), Sherry v. Queens Kidney Center, 117 A.D.2d 663 (2d Dept. 1986), and Eagleston v. Mount Sinai Medical Center, 144 A.D.2d 427 (2d Dept. 1988). However, a careful examination of the Second Department’s rulings reveal that appellants’ citations of these cases is flawed. In Bennin, supra, there was a gap of four years between two surgeries performed and there was no evidence of any intervening treatment. While the 53 court did say that the continuous treatment doctrine is inapplicable when the gap exceeds the limitations period, this was merely dicta because it had found factually that there was no continuous treatment. Further, the Bennin court cited Naetzcker v. Brocton Central School District, 50 A.D.2d 142 (4th Dept. 1975), reversed on other grounds, 41 N.Y.2d 929, for the proposition that where the gap exceeds the statute, the doctrine does not apply. In fact, the Fourth Department in Naetzcker found that the physician/patient relationship was terminated at the beginning at a two and a half year gap in treatment and that a gap in treatment of three and a half years was not dispositive. Thus, Bennin should not be read as standing for the proposition that if the gap exceeds the statute, the doctrine does not apply. Similarly, in Barella v. Richmond Memorial Hosp., 88 A.D.2d 379 (2d Dept. 1982), the court did not find that a gap which exceeded the statute required the application of the statute of limitations defense. In fact, the lower court found that there was no continuous treatment at the beginning of an eight and a half month gap which was what was dispositive because there was no treatment expected or contemplated at the beginning of the gap. The court did mention that the rule but in doing do cited Bennin which, as just discussed above, did not so hold. Similarly in Sherry v. Queens Kidney Center, 117 A.D.2d 663 (2d Dept. 1986), the Second Department decided the case on whether there were facts 54 establishing continuous treatment and not because the gap exceeded the two and a half year statute. The Second Department, in referring to the gap rule exceeding the statute, incorrectly cited the dicta in the Bennin and Barella cases as discussed above. In Grellet v. City of New York, 118 A.D.2d 141 (2d Dept. 1986), the Second Department made the same mistake in citing Bennin. And, in Eagleston v. Mount Sinai Medical Center, 144 A.D.2d 427 (2d Dept. 1988), the Second Department then made a similar mistake in citing Grellet. Then, in Arias v. Southside Hospital, 203 A.D.2d 220 (2d Dept. 1994), the Second Department mistakenly cited Eagleston, supra, for the proposition that the case should be dismissed because the gap exceeded the statute but Eagleston was not decided on the gap issue. Notably, in Cox v. Kingsboro Medical Group, 214 A.D.2d 150 (2d Dept.), the majority held that there was no continuous treatment and that the gap exceeded the statute. However, on appeal, the New York Court of Appeals, declined to hold that the statute applies when the gap exceeds the statute of limitations. In Cox, the New York Court of Appeals affirmed dismissal only because facts of continuous treatment for the same condition were not shown. 88 N.Y.2d 904 (1996). 55 In Michaels-Daily, 245 A.D.2d 430 (2d Dept. 1997), the Second Department did hold that if the gap exceeded the statute, the statute defense applies as a matter of law. However, in this regard, the court cited Cox but for the reasons as noted above, the New York Court of Appeals’ decision in Cox did not so hold. Further, the Second Department in Michaels-Daly also found that at the end of the first series of visits to the doctor, no specific treatment was required. Thus, the case was actually decided on the failure of the patient to produce facts showing continuous treatment for the same condition. In Bulger v. Nassau County Medical Center, 266 A.D.2d 212 (2d Dept. 1999), the Second Department did decide the case because the gap exceeded the statute. However, in so doing, the court cited the Michaels-Daily case which, as discussed above, incorrectly cited and relied upon the Cox case which, as discussed above, was decided by the New York Court of Appeals not on the gap issue but on the fact that no continuous treatment for the same condition was demonstrated. Obviously, what the Second Department seems to be doing in these cases with respect to application of the gap rule where it exceeds the statute of limitations, is to rely on dicta in previous cases which were actually decided on the lack of proof of continuous treatment for the same condition. 56 Notably, the Second Department may have seen the error of its ways with regard to the gap in treatment rule in Marmol v. Green, 7 A.D.3d 682 (2d Dept. 2004). Incorrectly citing Grellet, the Second Department noted that it is the rule in the Second Department that if the interval of time between visits of treatments exceeds the statute of limitations, dismissal is required but then held that the plaintiff had raised a triable issue of fact regarding whether the parties considered that the treatment by the doctors was complete! Thus, dismissal was not warranted because the gap exceeded the statute! Furthermore, the Second Department reached this holding even though the patient had consulted other physicians for the condition involved unlike Lohnas who never consulted any other doctors about her shoulder. Similarly, the Second Department, in Peykarian v. Yin Chu Chien, 109 A.D.3d 806 (2d Dept. 2013) found that gaps of 40 months and 34 months did not require dismissal because exceeding the two and a half year statute. Dismissal was on the basis of the lack of evidence of continuous treatment (unlike the instant case where Lohnas has demonstrated such). In sum, the New York Court of Appeals has never held that if a gap in treatment exceeds the statute of limitations, dismissal is warranted. Nor have the First, Second or Fourth Departments ever so held. And, as is evident from an 57 analysis of the Second Department’s holdings, its holdings to this effect have been based upon its own dicta which should have had no precedential value. POINT II THERE ARE QUESTIONS OF FACT AS TO WHETHER EQUITABLE ESTOPPEL APPLIES TO ESTOPP DR. LUZI FROM ASSERTING THE STATUTE OF LIMITATIONS DEFENSE Supreme Court found that there were questions of fact as to Lohnas’ claim of equitable estoppel (R.28). The Fourth Department reversed on this issue (R.6a- 7a), but then certified the question: “Was the Order of this Court entered June 17, 2016 properly made”? (R.3a) Consequently, the estoppel issue may be before the Court of Appeals for review and if so whether there are questions of fact on this issue is a matter of law which is within the scope of review by the Court. The Statement of Facts, supra, at pp.33-34, detail Luzi’s mispresentations and concealment. The leading case of Simcuski v. Saeli, 44 N.Y.2d 442, 406 N.Y.S.2d 259 (1978) is instructive. In Simcuski, the defendant doctor performed surgery – excision of a node in the plaintiff’s neck. Thereafter, she experienced numbness on the right side of her neck and face and pain when raising her right arm and was told by the defendant that her post-op problems, pain and difficulties were transient and would disappear if she would undertake a regiment of physiotherapy. This 58 was not true. He concealed the fact that he had damaged her spinal accessory nerve. Her right arm was not going to get better. The court found that these allegations were sufficient to allow plaintiff to plead and prove equitable estoppel to bar the defendant from asserting the statute of limitations defense. Certainly, in the instant case, Lohnas’ allegations as to Luzi’s misrepresentation bring her within the ambit of the Simcuski holding. Furthermore, Simcuski stands for the proposition that facts of intentional concealment, even without misrepresentations, are enough to invoke the doctrine of equitable estoppel. Renda v. Frazer, 75 A.D. 490 (4th Dept. 1980) is also on point. In Renda, the physician had performed ear surgery on the plaintiff during which he severed her seventh facial nerve. This was in March, 1973. Plaintiff sued him in July, 1978. Her last visit with him apparently was August, 1977. Thus, there was some five years between the date of the surgical malpractice and commencement of suit. In holding that the statute of limitations could not be asserted by the defendant surgeon, the Fourth Department found that the plaintiff had presented questions of fact on this issue sufficient to deny the defendant doctor summary judgment. Questions of fact were raised because the plaintiff presented evidence that the defendant surgeon had told plaintiff, following the surgery and with relation to her 59 problems with the severed nerve, that “everything would be alright” and he never told her that the nerve graft would never give her back her normal face. In the instant case, Luzi made just these same kind of representations. He told Lohnas that the surgery went well – it did not. He told her the problems were from ongoing arthritis – they were not – they were from the retroverted humeral head. He told her that her problems stem from a degenerating rotator cuff – that was true but then he never told her why – again, the excessively retroverted humeral head. Certainly, these misrepresentations by Luzi and Lohnas’ testimony as to them raised questions of fact sufficient to defeat Luzi’s motion on this issue. The facts in Ross v. Community General Hospital, 150 A.D.2d 838, 541 N.Y.S.2d 246 (3d Dept. 1999) are also instructive. In Ross, a chest x-ray had been done of the plaintiff which showed a lesion but the physician failed to take note of that and order a further x-ray. The defendant physician failed to notify the plaintiff either that the lesion was revealed in a 1980 x-ray or that he had not followed up to obtain a legible report of same. The Third Department held that this evidence could readily support an inference that Schwab intentionally concealed these facts and, indeed, implicitly misrepresented that nothing of significance was contained in the 1980 x-ray that plaintiff requested, in order to forestall the timely commencement of a suit for malpractice. Such an inference would satisfy the key 60 element giving rise to an estoppel from asserting a statute of limitations defense. Certainly, in the instant case, an inference can and should be drawn that Dr. Luzi intentionally concealed his malpractice of the excessively retroverted humeral head implant and that this was the true cause of Lohnas’ ongoing conditions and that by virtue of such concealment, and misrepresentations as to the status of the humeral head implant, he was forestalling the timely commencement of suit for malpractice by Lohnas. Ross strongly supports Lohnas’ claims in this case that equitable estoppel should apply. The facts in Edmonds v. Getchonis, 150 A.D.2d 879 (3d Dept. 1989), are also instructive and strikingly similar to the instant case. Like Lohnas, the patient had a procedure performed in November, 1977 (dental implant), then returned to the dentist nine months later and had a lower bridge installed, but then did not return to the dentist until December, 1980, 27 months later. The dentist failed to tell her that the implant showed signs of failure calling for its removal and that she had very little jaw bone left. Facts similar to Lohnas’ failing humeral head implant and the deterioration of rotator cuff and glenoid. The Third Department noted that plaintiff had to be given the benefit of every possible inference to be drawn from the evidence, citing Ross, supra at 841, and that it is “not unreasonable to picture that Getchonis concealed the information in order to avoid a timely lawsuit.” 61 Appellants claim that there is no evidence that Dr. Luzi knew he committed malpractice and thus it cannot be shown that he intentionally concealed malpractice from the plaintiff. This is simply not so. Dr. Paterson’s testimony, and the affidavit of plaintiff’s expert, clearly demonstrate that the humeral head implant was excessively retroverted. Since the x-rays showed it was firmly in place, then that is the way it was wrongly put in by Dr. Luzi. He knew it was wrongly positioned. Dr. Paterson saw this with his naked eye. Dr. Luzi would have also seen this with his naked eye when he performed his surgery in January, 1999. Dr. Luzi’s denial of this merely creates a question of fact on this issue. It does not mandate the denial of the application of the equitable estoppel doctrine in this case. CONCLUSION The Fourth Department's Order should be affirmed as to the continuous treatment issue and reversed as to the equitable estoppel issue. Dated: Buffalo, New York February 28, 2017 62 Fitzgerald & Roller, P.C. Brian P. Fitzgerald, Attorneys for Plaintiff-Respondent Darlene M. Lohnas 509 Liberty Building 424 Main Street Buffalo, New York 14202 Tel. (716) 852-2000 CERJTIFICATION OF WORD COUNT I, the undersigned, an attorney at law admitted to practice before the courts of the State of New York, hereby certify in accordance with 22 NYCRR 500.13(c), that the Respondent's Brief filed on behalf of the plaintiffs in this action does not exceed 14,000 words, and that the total word count of said Brief, according to the word-processing system used to prepare the Brief, is 13,823. Dated: Buffalo, New York February 28, 2017 63 Fitzgerald & Roller, P.C. Brian P. Fitzgerald s Attorneys for Plaintiff-Respondent Darlene M. Lohnas 509 Liberty Building 424 Main Street Buffalo, New York 14202 Tel. (716) 852-2000 APPENDIX A 365 Exhibit "A " Annexed to Affidavit of Fitzgerald. Humerus and Scapula: Anterior Views Sf£ ALSO PLATE 170 Acromion Acromial angle~ ~ Supraglenoid ~ rubercle~l.. Coraco•d proce/ Clavicle (CUI) /Superior angle - - ----Superior border Anatomical neck- _ -_,_ ~ ',"' Create• tubercle--; · t Lesser tuberc~ ~ sulcus~ / / cavrtyol scapula Crest or humerus ~ lnfraglendidtuberde l..lteral border ~:.~::~~:::-~ / Glenoid greater tubercle Head of /Inferior angle Crest of / ATrapez.ius muscle I I b d / Scapula esser u er e -- /Pectoralis nunor muscle Humerus Deltoid tuberosity /Omohyoid ntusde Deltord nlu~cle._ eL • Medral ....,. "< / supracoo1dyl.ll ridge Biceps brachii muscle~ , _ ~ · (long head) ~ lateral --" supracondylar ridge Supraspinatus muscle~ { Medial~\- -- _ ~:~:::~::::~::::::de 1 l Condyles laterah, f cJ '\. ~~ceps brachii muscle A Radial 1 hhort head) · ;~~:/Y);j Pectoralis maJOr muscle 1 1 Capitulum Coronoid fossa Trochlea MPdial epicondyle '"'"~' '"'' ""'"' ''"'" '"""''\ / Common extensor tendo11~ (extensor carpi radialis brevis, extensor digitorum with extensor digiti minimr ~nd cxten~or carpi ul naris mu$tlesl Muscle attachments Origins Insertions Pronator teres muscle (humeral head) Serratus anterior muscle // Common llexor tendon Cllexor carpi radialis, palmaris longu$, flexor carpiulnaris and llexor digitorum superllcialis lhumeroulnar h~adt muscles I · /Flexor digilorum superfrciali$ muscle / (humeroulnar heaclJ Br~t hrali\mu\c tP·----r: ' Suptni>too fflusdc -~~...---- '\; --Pronator teres mu,clt> (ulnar hedd) Bicf'p$lnd<.hii rwr~r It• ---- - rle~or puiJu·r~ 11111811~ nuJsde fUIUal headl PLATfJ92 UPPER UMB 366 Exhibit "A" Annexed to Affidavit of Fitzgerald. Rhomboid major muscle Latiss1mus doJs• muscle (small shp of origin) Humerus and §capu!a: Posterior Views SEE ALSO PLATE 170 Lateral bo• der Inferior angle~ Trapez•us Infraglenoid tubercle /Deltoid tube•osity Humerus-- ~Radial groove muscle ~ Teres major muscle Scapula ~'::>-Deltoid muscle ·- · '~Suprasvina tus muscle ,.,..__ Infraspinatus muscle ---Teres minor muscle - Triceps brachii muscle (lateral head) ~ ~. /Medial \ f supracondyl;11 ridg(' I / lateral supracondylat ridge ~ Olecranon fossa ..- 1 .. 1· ~Trochlea Groove for ulnar nerve Medial epicondyle ~Lateral epicondyle r lriceps brachii muscle (medial head) Muscle aHachments Origins Insertions Tric:cps brathii muscle....._ ~ \ Cotruuon flexo1 leudon--- ~Common extensor tendon ---.............Anc:oneus muscle SHOUWER AND AYHi.A Pl AT£393 367 Exhibit n A" Annexed to Affidavit of Fitzgerald. Shoulder (Glenohumeral) Joint Anterior view Anterio r view Acromioclavicular JOIIlt capsule (Incorporating acromioclavicular ligament)~ Acromion--- Cor~coacl omialligament ---~ .. ~~~:_:_ Infraspinatus tendon ((used lo capsuiP) Glenood <.avily (cartilage I loin! opened: lateral view __ CIJv1de OJ!f!N ~\·.":';:: .;;;.:::...---Subd.ltold buts.llused wtlh subacromial burs.a Subsco~pularis musrt.- Deltoid muscle Glenoid labrum Subdeltoid bursa Supraspinal~ tendon Capsular ligame nt Synovial membrane Glenoid cavity ol ~ scapula Axillary recess Coronal section through joint UPPER LIMB 368 Exhibit "A" Annexed to Affidavit of Fitzgerald. Posterior view Tr~pezius muscle Deltoid Infraspinatus fascia----..j,;.!'L:.::L.: Triangle of auscultation Deltoid branch of thoracoacromial artery Biceps brachii muscle Triceps brachii mu>de (lateral head)---" SHOUlDER AND AXIllA Muscles of Shoulder SEE ALSO PLATES 22, 160, 174, 175, I 77, 178 ~Omohyoid muscle and investing layer or deep cervical fascia head ! ....--sternocostal head Abdominal part -.,.....--Sternum Pectoralis major muscle PLAT£395 369 Exhibit "A" Annexed to Affidavit of Fitzgerald. ~.,_.~~· SfN<• tc..j Muscles of Rotator Cuff (-+ J ·:- i·"" .. ,. ·' f~-..1 -/<-.,. ~ \ /~· .-...of! """-..N)c {.~ Superior view Biceps brachii tendon (long head)~J II . .. Pf..AT£396 .\J .... W'-!f•J."- I • > CoracoclaviCI.IIar ligament .J Anterior view Posteriur view tendon lue mmrn ll'U"-t :, -. UPPER LIMB APPENDIXB 1238 Exhibit "G" Annexed to Affidavit of Fitzgerald . . -- l- - ---'0 ..iJ 0 1 F 1239 Exhibit "G" Annexed to Affidavit of Fitzgerald. 1240 Exhibit "G" Annexed to Affidavit of Fitzgerald. j