Stahl v. Smud

Mikoll, J.

Appeal from an order of the Supreme Court (Ingraham, J.), entered October 7, 1993 in Otsego County, which denied a motion by defendant Jorge D. Smud for summary judgment dismissing the complaint against him.

Defendant Jorge D. Smud (hereinafter defendant), a physician specializing in obstetrics and gynecology, delivered the child of plaintiff Blair M. Stahl (hereinafter plaintiff) on June 23, 1986. During the delivery, plaintiff sustained a fourth-degree perineal laceration. In July 1989, plaintiff was diagnosed as having a recto-vaginal fistula. She commenced this action along with her husband in January 1991 alleging, inter alia, defendant’s negligence in causing the recto-vaginal fistula when he repaired the perineal laceration and in failing to thereafter ascertain its existence. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint against him upon the ground that the action is barred by the 21A-year Statute of Limitations for medical malpractice (CPLR 214-a) as to all treatment he rendered to plaintiff between June 23, 1986 and February 2, 1987 and that he was not negligent in the treatment rendered thereafter, on August 1, 1988. Finding that a factual issue existed concerning the applicability of the "continuous treatment doctrine” and that defendant did not satisfactorily establish his freedom from negligence in connection with the August 1, 1988 treatment, Supreme Court denied the motion. Defendant appeals.

On this appeal defendant contends that plaintiff’s cause of action for malpractice relating to her treatment between June *77123, 1986 and February 2, 1987 is time barred since no treatment was established for plaintiffs complaint of abnormal discharge and thus the continuous treatment doctrine does not apply. We reject this contention.

It is clear that defendant’s alleged misdiagnosis of plaintiffs condition on August 1, 1988 is within the statutory period of limitation. Also, the Statute of Limitations as to his alleged acts and omissions occurring between June 23, 1986 and plaintiff’s visits with him from August 1986 through February 1987 would be tolled under the continuous treatment doctrine. From affidavits supplied by plaintiff and her husband, a question of fact has been raised regarding the applicability of the continuous treatment doctrine which precludes summary judgment. The doctrine applies "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint” (Borgia v City of New York, 12 NY2d 151, 155; see, Nykorehuck v Henriques, 78 NY2d 255, 258-259; Richardson v Orentreich, 64 NY2d 896, 899).

Plaintiffs’ submissions support their contention that defendant performed negligent acts or omissions, inter alia, during labor and delivery in that he did not properly repair plaintiff’s fourth-degree laceration and this caused recto-vaginal fistulas. Plaintiffs also allege that despite several postpartum appointments wherein plaintiffs complained to defendant and sought treatment for plaintiff’s problem with abnormal discharge, defendant failed to diagnose her as having recto-vaginal fistulas and treat her for them.

Clearly, "a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment” falls within the scope of continuous treatment (McDermott v Torre, 56 NY2d 399, 406). Plaintiffs have properly raised questions of fact as to whether plaintiffs numerous visits to defendant after giving birth, during which she allegedly complained of a dark discharge and pointed it out to defendant, constituted a "course of treatment” so that the continuous treatment doctrine is applicable. This is particularly true where good general practice, conceded as such by defendant, calls for examining the area where an episiotomy was performed to ensure proper healing. Defendant’s conclusory self-serving statements that he did not deviate from good and accepted medical practice are insufficient to entitle him to summary judgment (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

The order of Supreme Court should therefore be affirmed.

*772Cardona, P. J., and White, J., concur.