Tuesday, November 29, 2016

A time-barred medical malpractice claim.

The Appellate Division affirmed the granting of defendants' motions for summary judgment dismissing the complaint in this action where plaintiff had presented to defendant, who noted that plaintiff's vision in his right eye was 20/400," or legally blind in that eye. Thereafter, plaintiff presented to defendant approximately once a year for an examination and a prescription for contact lenses. On each occasion, defendant noted the continued existence of nerve pallor and optic neuropathy. Plaintiff saw a neuro-ophthalmologist, who diagnosed him with a meningioma which, he stated, had caused right eye blindness. Plaintiff contends that defendant's failure to diagnose the condition sooner, or to refer him to an ophthalmologist or a neuro-ophthalmologist, constituted malpractice.

Practice point: Supreme Court properly dismissed plaintiff's action on the ground that his claims were barred by the applicable three-year statute of limitations, pursuant to CPLR 214[6]. The continuous treatment doctrine does not operate to toll the statute of limitations because defendant was not engaged in treatment of plaintiff's optic neuropathy, but performed only routine or diagnostic examinations, which, even when conducted repeatedly over a period of time, are not a course of treatment. The measurement of plaintiff's nerve pallor annually did not itself amount to continuous treatment, or reflect any agreement to monitor the condition, but was part of the routine examination.

There was one visit within the statute of limitations, but there is no contention that the failure to diagnose or refer plaintiff on that date proximately caused any further loss of vision or prevented a better outcome.

Case:  Flaherty v. Kantrowich, NY Slip Op 07837 (1st Dep't November 22, 2016)

Here is the decision.

Tomorrow's issue:  The penalty for non-compliance with discovery orders.