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Adam v. Park Ridge Hospital5/7/1999
(Appeal from Order of Supreme Court, Monroe County, Galloway, J. - Summary Judgment.)
OPINION OF THE COURT
Order reversed on the law without costs, cross motion denied, motion granted and complaint against defendant Tarun Kothari dismissed. Memorandum: Supreme Court erred in denying the motion of Tarun Kothari (defendant) for summary judgment dismissing the complaint against him as time-barred and granting the cross motion of plaintiff dismissing the affirmative defense of the Statute of Limitations. Plaintiff has a history of chronic ulcerative colitis that was treated on a periodic basis from June 1986 through February 1996 by defendant, a gastroenterologist. On August 29, 1994, plaintiff was injured when she fell from her bed in the recovery room at defendant Park Ridge Hospital (Hospital) after defendant performed a routine colonoscopy. Plaintiff alleged that defendant committed malpractice by failing to inform the Hospital staff of her drug allergies and failing to direct the Hospital staff adequately with respect to her post-procedure care. The record establishes that defendant never treated plaintiff for the injury resulting from the fall, which consisted of contusions to her right shoulder and hip, and that he saw her only once more, 18 months later, at which time he performed another colonoscopy and biopsy for the purpose of monitoring her gastroenterological condition.
Contrary to the court's Conclusion, the medical malpractice Statute of Limitations (CPLR 214-a) was not tolled under the continuous treatment doctrine during the interval between plaintiff's orthopedic injury in August 1994 and plaintiff's routine colonoscopy in February 1996. The continuous treatment doctrine rests upon "the premise that it is in the patient's best interest that an ongoing course of treatment be continued, rather than interrupted by a lawsuit, because 'the doctor not only is in a position to identify and correct his or her malpractice, but is best placed to do so"' (Nykorchuck v Henriques,78 NY2d 255, 258, quoting McDermott v Torre, 56 NY2d 399, 408; see also, Ganess v City of New York, 85 NY2d 733, 735). "Thus, essential to the application of the doctrine is that there has been a course of treatment established with respect to the condition that gives rise to the lawsuit" (Nykorchuck v Henriques, supra, at 258-259). Here, as in Nykorchuck (supra, at 259), the only course of treatment alleged was related to a separate medical condition, plaintiff's ongoing gastroenterological condition. Absent a course of treatment for the orthopedic condition, the ongoing treatment of the gastroenterological condition did not toll the Statute of Limitations for the orthopedic injury.
All concur except Pine, J. P., who Dissents and votes to affirm in the following Memorandum: I respectfully Dissent. In support of her cross motion to dismiss the Statute of Limitations affirmative defense, plaintiff states in an affidavit that, on the morning of August 29, 1994, prior to the colonoscopy procedure, she met with Tarun Kothari (defendant) alone and that he told her he wanted to give her Demerol during the colonoscopy. She avers that defendant told her not to mention her allergy to Demerol to the nurses and to deny it if asked, and she further avers that, based on her conversation with defendant, when she was asked about Demerol she denied any problem in receiving it.
Plaintiff was given Demerol during the procedure. Plaintiff further avers that, after the procedure, while she was seated on the side of the bed with the rails down and nothing to hold on to, a nurse told her to get dressed and left her alone to do so. Plaintiff avers that, after she began to dress, the room started to
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