Lewis v. Rutkovsky

Tom, J.P.,

dissents in a memorandum as follows: While I agree with the majority that defendants showed good cause for the de minimis delay in the filing of their summary judgment motions, and that Supreme Court should have considered the motions on the merits, I would grant defendants’ motions for summary judgment as plaintiff failed to raise triable issues of fact as to the continuous treatment doctrine or that defendants committed medical malpractice. Accordingly, I respectfully dissent.

On March 5, 2010, plaintiff commenced this action against defendant Frederick D. Rutkovsky, M.D., her primary care physician, and, defendants LHHN Medical RC. and Lenox Hill Community Medical Group, P.C. (together LHHN), seeking damages for injuries — including a frontal craniotomy and loss of vision — related to a meningioma, i.e. a benign brain tumor. Plaintiff alleged that Dr. Rutkovsky failed to detect, diagnose, and treat the meningioma from on or about April 3, 1998 to September 5, 2007. Specifically, she asserted that Dr. Rutkov-sky “ignored” her primary complaints of headache, including occasional complaints of blurred vision, and other related symptoms.

In their motions for summary judgment, defendants contended that plaintiffs malpractice claims were time-barred, as she commenced the action on March 5, 2010, more than two and a half years after her last appointment with Dr. Rutkovsky at LHHN on September 5, 2007. They maintained that plaintiff’s care did not fall within the continuous treatment exception to the statute of limitations because she was not involved in a continuous course of treatment concerning her headaches and/or vision issues. Defendants also maintained that the medical services provided to plaintiff were within good and accepted medical practice.

“The continuous treatment doctrine tolls the Statute of Limitations for a medical malpractice action when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition *458or complaint” (Cox v Kingsboro Med. Group, 88 NY2d 904, 906 [1996] [internal quotation marks omitted]). “Where the malpractice claim is based on an alleged failure to properly diagnose a condition, the continuous treatment doctrine may apply as long as the symptoms being treated indicate [d] the presence of that condition” (Wilson v Southampton Urgent Med. Care, P.C., 112 AD3d 499, 500 [1st Dept 2013] [internal quotation marks omitted]).

Plaintiffs medical records reveal that she first sought treatment from Dr. Rutkovsky on April 3, 1998, complaining of allergies and congestion. Thereafter, of the approximately 30 visits to Dr. Rutkovsky between 1998 and 2007 documented by her medical records, plaintiff sporadically complained of headaches and/or vision issues on only five occasions: March 1, 1999; July 14, 1999; July 23, 2004; November 8, 2006; September 5, 2007.

Notably, plaintiff visited Dr. Rutkovsky through these years for routine annual checkups and for other concerns, and there are gaps of years between the 1999 and 2004 visits, and the 2004 and 2006 visits during which there is no evidence of explicit anticipation “by both physician and patient” of further treatment “as manifested in the form of a regularly scheduled appointment for the near future” relating to the same original condition or complaint concerning her headaches (Cox, 88 NY2d at 906 [internal quotation marks omitted]). Rather, it appears plaintiffs complaints of headaches were isolated and not part of a continuous course of treatment. Indeed, Dr. Rutkovsky noted that plaintiff never complained of headaches at any two contiguous visits and that five years elapsed between the second complaint of headaches in 1999 and her third complaint in 2004. Then there was a gap of two more years before she complained of headaches in 2006. In sum, plaintiff complained of headaches and/or vision problems on five separate occasions with long gaps in between during approximately 30 visits to Dr. Rutkovsky and over a period of close to a decade. Clearly, this set of circumstances cannot support a continuous course of treatment for plaintiffs sporadic complaints of headache.

In opposition to defendants’ prima facie showing that so much of the complaint as alleged medical malpractice committed before September 5, 2007 was barred by the governing statute of limitations, contrary to the majority’s contention, plaintiff failed to raise a triable issue of fact. The majority, relying solely on plaintiff’s self-serving deposition testimony, claims that I mischaracterized the record in asserting that there was no evidence of regular appointments or ongoing *459treatment for plaintiffs headache-related complaints. However, the medical records in evidence do not show that there were any visits by the plaintiff to Dr. Rutkovsky between January and June 2007 at which she complained of headaches or received treatment for that ailment. Instead, the medical records show that plaintiff presented during those months with only back pain and gynecological concerns. Moreover, plaintiffs testimony was unsure. In response to questions about how often she saw Dr. Rutkovsky in that time period, she could only state “I think it was once a month,” and no medical records corroborate her claim that she complained of headaches during those visits in any event. Conclusory allegations, without more, are insufficient to defeat summary judgment (see McGahee v Kennedy, 48 NY2d 832, 834 [1979]). Further, plaintiffs equivocal testimony did not create a genuine issue as it was contradicted by the documentary evidence, and thus failed to raise a triable issue of fact (see Bank of N.Y. v 125-127 Allen St. Assoc., 59 AD3d 220 [1st Dept 2009]; see also Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]). Here, plaintiffs bare, equivocal statements of the times she saw Dr. Rutkovsky during this time period concerning complaints of headache, contradicted by the medical records, is insufficient to raise a factual issue concerning continuous treatment. Moreover, plaintiff does not connect these purported visits between January and June 2007 to her documented visit in September 2007, or otherwise raise an issue regarding a continuing course of treatment for headaches.

As noted, plaintiffs medical records demonstrate only sporadic complaints of headache and/or vision issues over the course of almost a decade, and there is no evidence to show that both Dr. Rutkovsky and plaintiff “explicitly anticipated” that Dr. Rutkovsky would treat plaintiff for a specific condition. In fact, there was no evidence of regular appointments or ongoing treatment for plaintiffs sporadic headache-related complaints. Accordingly, these circumstances fail to rise to the level of “continuous treatment” articulated by the controlling case law (Cox, 88 NY2d at 906). The majority’s bare allegation that issues of fact are raised as to continuous treatment is unsupported and belied by the record of this case.

Contrary to the majority’s reading of the relevant case law, while the “determination as to whether continuous treatment exists . . . must focus on the patient” (Rizk v Cohen, 73 NY2d 98, 104 [1989]), the patient is required to make timely return visits related to the same original condition or complaint (see McDermott v Torre, 56 NY2d 399, 405-406 [1982]; see also Cox, *46088 NY2d at 906, citing Borgia v City of New York, 12 NY2d 151, 155 [1962]). Thus, while we must look at “whether the patient believed that further treatment was necessary, and whether [s]he sought such treatment” (Devadas v Niksarli, 120 AD3d 1000, 1006 [1st Dept 2014]), here, the medical records reflect plaintiff did not consistently seek treatment for headaches. Nor does the record evidence support the claim that Dr. Rutkovsky was “consistently treating and/or monitoring [plaintiff] for specific symptoms related” to meningioma (Chestnut v Bobb-McKoy, 94 AD3d 659, 661 [1st Dept 2012]).

This case is akin to O’Donnell v Siegel (49 AD3d 415, 417 [1st Dept 2008]) where, over a nine-year period, the defendant physician on five separate occasions treated the plaintiff “as he appeared,” and there was no discussion of a “course of treatment” or evidence that further treatment was explicitly anticipated by doctor and patient. Further, as is also the case here, in O’Donnell there was a gap of five years during which no treatment was rendered relating to the original condition, and the return five years later was fairly characterized as a “renewal” rather than a continuation of the relationship. We held that in such circumstances the motion court should have dismissed the plaintiff’s claims as time-barred and that the continuous treatment doctrine could not be invoked by the plaintiff (49 AD3d at 417).

The majority’s reliance on Wilson v Southampton Urgent Med. Care, P.C. (112 AD3d 499, 500 [1st Dept 2013], supra) is misplaced. First, all of the plaintiff’s 11 visits to the physician in Wilson took place over a period less than two years. Further, at each of those visits the plaintiff apparently complained of headaches. Moreover, in Wilson, this Court found that the plaintiff raised a triable issue of fact regarding whether he was receiving continuous treatment for symptoms related to lung cancer where the treating physician admitted that a brain tumor from metastasized lung cancer would cause headaches; the physician considered the possibility of a brain tumor in his differential diagnosis; and the physician recommended a MRI and neurological consult. Here, by contrast, the evidence shows that there was no continuous course of treatment for her periodic complaints of headache and/or vision issues over a period of almost a decade long.

In addition, while the majority posits that the symptoms in Wilson were more attenuated from the ultimate diagnosis than the symptoms in this case, this argument misses the mark. Rather, the holding in Wilson was supported by a substantial number of visits in a short time period all of which dealt with *461the same complaint of headaches. Such circumstances clearly do not exist in this case.

Notably, in Simons v Bassett Health Care (73 AD3d 1252 [3d Dept 2010]), relied on by the majority, the patient’s entire course of treatment took place over less than three years and included numerous visits for “complaints or ongoing treatment of migraines, headaches, dizziness, pain on the right side of her face and blurred vision” which were suggestive of or consistent with meningioma (id. at 1255). Thus, Simons turned on the frequency of visits over a shorter time span during which the patient sought treatment for complaints related to her meningioma. Again, such circumstances do no exist here (see also Chestnut, 94 AD3d at 662 [finding triable issue of fact as to whether continuous treatment existed where patient made “frequen(t)” visits for, inter alia, bilateral knee pain, leg swelling and high levels of alkaline phosphates in the blood (symptoms associated with lung cancer) over “relatively short period of 13 months” and where doctor engaged in “intens(e)” course of treatment of the plaintiff’s knee condition]). Once again, plaintiff’s occasional complaints of headaches during visits to Dr. Rutkovsky span over a period of close to a decade.

With respect to plaintiff’s remaining timely allegation that defendants committed medical malpractice on her last visit on September 5, 2007, plaintiff again failed to raise a triable issue of fact in opposition to defendants’ prima facie showing. Based on the record, defendants established that Dr. Rutkovsky did not deviate from the accepted standard of care when plaintiff presented at his office on her last visit complaining of headache and vision disturbances by advising her to return for a neurology referral if her symptoms did not subside in one week. It is undisputed that plaintiff did not seek further neurological treatment or medical attention from Dr. Rutkovsky. She was subsequently diagnosed with a meningioma in November 2007, when she was admitted to the emergency room with vision complaints. Plaintiff’s expert affirmations submitted in opposition were conclusory and speculative, and, thus, insufficient to raise a question of fact as to defendants’ liability (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]).

Accordingly, I would reverse the order on appeal and grant defendants’ summary judgment motions to dismiss the action.