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August 12, 2015

Third Department Holds Claim Against Medical Specialist Time Barred Due To Exception To The Continuous Treatment Doctrine

On July 16, 2015, the Appellate Division, Third Department reaffirmed that, under the continuous treatment doctrine, the 2 1/2 statute of limitations governing medical malpractice claims "does not begin to run until the course of treatment ends, provided the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint." Fuller v. Aberdale, 2015 N.Y. Slip Op. 06188 (3d Dep't 2015). Although the continuous treatment doctrine has been recognized in New York for many years, its application to the facts of this case demonstrates the doctrine's inapplicability to medical specialists for claims of malpractice asserted years after their treatment of the patient has concluded, assuming that treatment is limited to the specialist's area of expertise.

In Fuller, the decedent's husband commenced a medical malpractice action after his wife succumbed to Stage IV cancer. More particularly, he asserted that the physicians who treated his wife from 2006 through 2008 failed to timely diagnose his wife's cancer, thereby depriving her of an opportunity for survival.

The record showed that the decedent first sought treatment from defendants Albany Gastroenterology Associates ("AGC") and Dr. Richard Clift in January 2006 for symptoms of dyspepsia and upper abdominal discomfort. In a patient questionnaire, the decedent reported a family history of colon polyps and lower abdominal symptoms. Following an endoscopy, the decedent was diagnosed with acid reflux disease. That same day, Dr. Clift wrote the decedent's primary care physician at Community Care Physicians ("CCP"), advising him that the decedent's family history was "notable for a father who is alive at 76 with"¦a history of colon polyps." This reference was coupled with a recommendation to consider having the decedent undergo a colonoscopy in the near future. The decedent did not treat again with Dr. Clift and AGC until July 2008.

Between 2006 and 2008, the decedent treated with a number of other specialists for gastrointestinal symptoms in her lower abdomen. On October 12, 2007, she was seen by CCP for "upper abdominal and stomach pain." Various tests were performed by CCP, but the results were normal or otherwise unremarkable. The decedent was instructed to go to the ER if her pain continued or worsened. That night, she treated at the ER with complaints of abdominal pain.

In late October 2007, the decedent was seen by an internist at CCP for complaints of epigastric pain, abdominal pain and nausea. Her gallbladder was surgically removed on November 6, 2007. Two weeks later, she reported to her CCP physicians that the pain had subsided to some degree. During a January 2008 follow-up visit, she reported "digestive problems," however, her CCP physicians attributed these to "normal postoperative symptoms."

The decedent returned to Dr. Clift and AGC in July 2008. At that time, Dr. Clift diagnosed her with diverticulitis, prescribed a course of antibiotics, and recommended a colonoscopy. A colonoscopy was performed in September 2008 and confirmed rectal cancer. Subsequent testing revealed that the cancer had metasticized to the decedent's liver and lymph nodes. Radiation and chemotherapy proved unsuccessful.

Following the discovery phase, all of the defendants moved for summary judgment. The plaintiff asserted that the claims against Dr. Clift for the services he provided in 2006 remained viable under the continuous treatment doctrine. Both the Supreme Court and the Third Department disagreed.

Based on the sequence of treatment, the Third Department held that the continuous treatment doctrine did not apply to toll the statute of limitations for treatment that Dr. Clift and AGC provided in 2006. The reason for this is that Dr. Clift's 2006 treatment was confined to the decedent's "upper abdominal pain and, while a colonoscopy and follow-up appointment were recommended, no such appointment was made for over 2 1/2 years." By comparison, the decedent was referred back to Dr. Clift in July 2008 for complaints of "lower abdominal pain." Thus, the record did not support a finding that "the treatment was rendered for the same illness or that there was a mutual anticipation of future treatment." Accordingly, the claims against Dr. Clift and AGC were dismissed. The claims against CCP and its physicians continued for reasons unrelated to the continuous treatment doctrine.

The decision herein is a byproduct of the specialization in healthcare services. With greater specialization in the practice of medicine, the distinction between treatment for one body part or symptom, as opposed to another, becomes more clearly defined.

If you require further information regarding the content of this alert, please contact Dennis R. McCoy, Chair of our Professional Liability Practice Area, at (716) 566-1560 or


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