Thursday, June 29, 2017

Medical malpractice and the continuous treatment doctrine.

The Appellate Division affirmed dismissal as against defendant Health and Hospitals Corporation in this action where plaintiff alleges that defendants were negligent in failing to timely diagnose a cancerous wound. The motion court granted HHC's motion to dismiss the claims based on plaintiff's own conduct and his failure to file a timely notice of claim, in violation of General Municipal Law § 50-e(1)(a).

Plaintiff was discharged from an HHC hospital in November 2010 and did not return to an HHC hospital for treatment until May 2012, when he received the cancer diagnosis. The notice of claim was filed shortly after plaintiff's discharge from the hospital in October 2012, more than 90 days after the claim's accrual in November 2010.

Practice point:  The Appellate Division rejected plaintiff's contention that both the November 2010 and May 2012 visits were part of a continuous course of treatment, tolling the period for filing a notice of claim, pursuant to CPLR 214-a   It is clear that, at the time of plaintiff's 2010 discharge,  HHC anticipated that it would provide further treatment.  However, it also is clear that plaintiff did not anticipate any further treatment by HHC. as, in the interim period, he began treatment by a co-defendant acupuncturist who plaintiff thought was a licensed physician.  Plaintiff's actions indicated an intention to discontinue his relationship with HHC, and, therefore, his return visit must be deemed a renewal, rather than a continuation, of the physician-patient relationship.

Case:  Jianfeng Jiang v. Xue Chao Wei, NY Slip Op 04896 (1st Dep't June 15, 2017)

Here is the decision.

Tomorrow's issue:  Spoilation of evidence.