Hill v. New York City Health & Hospitals Corp.

Friedman, J.P., and Andrias, J.,

concur in a separate memorandum by Andrias, J., as follows: In this medical malpractice action, plaintiff alleges that the failure of Lincoln Hospital’s staff to diagnose and treat blood clots caused her right leg to be amputated above the knee. In the order on appeal, the motion court granted defendant’s motion to dismiss the complaint, finding that plaintiff’s notice of claim served on January 25, 2006 was untimely under the 90-day statutory deadline of General Municipal Law § 50-e (1) because the last date of treatment was October 19, 2005 and there “is no objective evidence to establish that plaintiff received any medical treatment [thereafter] to permit the application of the continuous treatment doctrine.” The court also found that plaintiff’s late notice of claim, served July 25, 2007, was not served in a “manner prescribed by law/’ as directed in the court’s prior order dated September 14, 2006, because the one year and 90-day statute of limitations of General Municipal Law § 50-i for commencement of this action lapsed on January 17, 2007 and could not be extended.

I agree with the majority that the motion court erred when it granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) on the ground that the notice of claim served by plaintiff on January 25, 2006 was untimely. However, I do not agree with the majority’s analysis insofar as it finds that plaintiff established that the continuous treatment doctrine applies as a matter of law. Rather, the record presents *434issues of fact as to whether plaintiff received continuous treatment from Lincoln Hospital until October 31, 2005, which would render the notice of claim served on January 25, 2006, timely, which cannot be resolved at this procedural stage.

Where there is a continuous course of treatment for the conditions giving rise to a malpractice action, the running of the applicable statutory period is tolled during the period of continuous treatment (see Young v New York City Health & Hosps. Corp., 91 NY2d 291 [1998]; Langsam v Terraciano, 22 AD3d 414 [1st Dept 2005]). Continuous treatment will also toll the 90-day period within which a notice of claim must be filed under General Municipal Law § 50-e (1) (see Plummer v New York City Health & Hosps. Corp., 98 NY2d 263, 267 [2002]).

In moving to dismiss the complaint, defendant argued that the notice of claim served by plaintiff on January 25, 2006 is untimely because the surgery took place on September 17, 2005 and the objective evidence demonstrates that the last treatment at the hospital was on October 19, 2005, when the sutures were removed. In support, defendant submitted its counsel’s affirmation, which, among other things, annexed plaintiff’s General Municipal Law § 50-h testimony, bill of particulars and an “MPI Index Inquiry,” which defendant’s counsel characterized as a printout of information maintained by the hospital’s Patients Accounts unit, which showed that plaintiff did not receive any treatment after October 19, 2005. However, although it is undisputed that the last time plaintiff received treatment at Lincoln Hospital was on October 19, 2005, when the sutures were removed, a patient remains under the continuous treatment or care of a physician between the time of the last appointment and the next scheduled one where the latter’s purpose is to administer ongoing treatment for the same or a related condition (see Richardson v Orentreich, 64 NY2d 896, 898-899 [1985]). Defendant’s counsel stated in her affirmation that “[t]he plan was for the plaintiff to have a PT/ PTT test performed that day [October 19] and to return to the Surgery clinic on October 24, 2005.” Thus, it appears that both plaintiff and defendant anticipated further treatment related to plaintiff’s leg beyond the October 19 visit (see Hardison v New York City Health & Hosps. Corp., 18 AD3d 224 [1st Dept 2005]; Oksman v City of New York, 271 AD2d 213, 215 [1st Dept 2000]).

Defendant did not produce any medical records that would demonstrate whether or not plaintiff appeared on October 24, or which would disprove plaintiff’s contention that she was told on that date to return on October 31. Insofar as defendant *435relies on the MPI Index Inquiry to show that plaintiff did not receive any treatment after October 19, 2005, as the majority states, the document is unverified and unauthenticated (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997 [2d Dept 2010]), and does not definitively establish what happened on October 24 and thereafter. Thus, defendant did not demonstrate its prima facie entitlement to dismissal of the complaint.

Furthermore, even if defendant’s submissions are deemed to satisfy its initial burden on the motion to dismiss, plaintiff’s submissions raised an issue of fact as to the applicability of the continuous treatment doctrine. Plaintiff asserted in her 50-h testimony and an affidavit that the notice of claim served on January 25, 2006 is timely under the continuous treatment doctrine because (i) a follow-up appointment was scheduled for October 24, 2005, at which time she was not examined and was told to return on October 31, 2005 because the hospital could not find her medical records; and (ii) when she returned on October 31, she was not examined and was told to go to her own physician because the hospital did not accept her insurance. This testimony as to scheduled follow-ups related to plaintiff’s leg, which was not disproved by documentary evidence, must be deemed true for the purposes of the CPLR 3211 (a) (7) motion to dismiss (see Hurrell-Harring v State of New York, 15 NY3d 8, 20 [2010]).

However, while plaintiff’s testimony suffices to defeat the motion to dismiss, her credibility cannot be resolved at this procedural stage. Plaintiff did not produce any objective records that would establish that she in fact returned to the hospital for treatment on October 24 or 31, 2005, and her hearsay allegations about statements from unidentified hospital staffers do not suffice to establish as a matter of law the hospital’s intent to continue treatment though October 31. Contrary to the majority’s holding, it is not enough that the record “suggests” or that “we can reasonably conclude” that plaintiff and her doctors explicitly anticipated that she would receive further treatment at the hospital after October 19, 2005, and the resolution of whether the continuous treatment doctrine applies raises factual issues that cannot be resolved at this procedural stage in the litigation. While defendant’s counsel confirmed that the parties anticipated further treatment on October 24, plaintiff would have to show that treatment was anticipated on October 31, in order to render the January 25, 2005 notice of claim timely.

Insofar as plaintiff re-served her notice of claim on July 25, *4362007, pursuant to an order dated October 14, 2006 which directed her to serve defendant with a copy “in the manner prescribed by law,” the motion court correctly held that it no longer had the authority to recognize that notice of claim because the one year and 90 day statute of limitations of General Municipal Law § 50-i had lapsed before it was served (see Argudo v New York City Health & Hosps. Corp., 81 AD3d 575, 576-577 [2d Dept 2011]).

Accordingly, I concur in the result only.