Coyne v. Bersani

Order affirmed, without costs. Memorandum: Plaintiff’s medical malpractice action against defendant was dismissed because it was not commenced within the applicable Statute of Limitations. She contends that treatment by subsequent physicians should be imputed to her initial treating physician to toll the *962statute. However, imputing the latter physician’s treatment to the defendant under these facts, would constitute an unwarranted extension of the doctrine of continuous treatment (see Florio v Cook, 65 AD2d 548, affd 48 NY2d 792; Fonda v Paulsen, 46 AD2d 540). It is clear from the record that defendant’s relationship with plaintiff terminated in October, 1978 when he last examined her. His only subsequent participation in her care consisted of supplying subsequent physicians with a medical history in the form of a description of his treatment. Defendant had no ongoing relationship with plaintiff and was not acting as the agent of or in association with the subsequent physicians (see McDermott v Torre, 56 NY2d 399,408). Since defendant’s treatment of plaintiff had terminated, the policy rationale underlying the continuous treatment doctrine of maintaining the physician-patient relationship to provide the most efficacious medical care will not be served by the application of the doctrine (see McDermott v Torre, 56 NY2d 399, 408, supra; Barrella v Richmond Mem. Hosp., 88 AD2d 379, 383). Furthermore, unlike the misdiagnosis of a biopsy report, defendant’s report of his treatment did not preclude proper subsequent treatment by other physicians since the record indicates that radiation was suspected by these physicians (cf. Fonda v Paulsen, 46 AD2d 540, supra; McDermott v Torre, 56 NY2d 399, supra). Additionally, as a policy consideration, the practice of forwarding a patient’s medical file to another physician at the request of the patient should not be deterred by the possibility that such action may render the subsequent physician’s treatment imputable to the primary physician. All concur, except Callahan and Doerr, JJ., who dissent and vote to reverse the order and deny the motion, in the following memorandum.