Young v. New York City Health & Hospitals Corp.

—Order, Supreme Court, New York County (Stanley Sklar, J.), entered September 14, 1995, which granted defendants’ motion to dismiss the complaint pursuant to CPLR 3211 and 3212 for failure to file a timely notice of claim, reversed, on the law, without costs, the motion denied and the complaint reinstated.

The dissent accurately portrays the facts; however, while it is well settled that treatment is deemed to be continuous for Statute of Limitations purposes " 'when further treatment is explicitly anticipated by both physician and patient’ ” (De Peralta v Presbyterian Hosp., 121 AD2d 346, 349 [emphasis omitted]), it has also been stated that treatment is considered to be continuous until "a hospital or physician considers treatment of a patient to be completed and the patient is neither instructed nor requested to return for further examination or treatment” (Swift v Colman, 196 AD2d 150, 152, citing McDermott v Torre, 56 NY2d 399, 405). Moreover, it is the existence of a relationship of continuing trust and confidence which underlies the continuous treatment doctrine; such a relationship does not necessarily end with a patient’s last visit with her physician and thereby bar forever a finding of continuing treatment (McDermott v Torre, supra, at 406; see also, Richardson v Orentreich, 64 NY2d 896, 898). Such findings are clearly made on a case by case basis and are necessarily contingent upon the particular facts of each case. Plaintiff was never told of the results of her mammogram or that she would not need any further treatment or examinations for that condition. Instead, she was told nothing, one way or the other and thus had no reason to conclude that her relationship with defendants’ clinic had ended. Defendants point out that plaintiff assumed the mammogram results were negative and, therefore, assumed that no further treatment was or would be necessary. However, it would be reasonable to assume that the radiologist believed the relationship and treatment to be ongoing as indicated by his recommendation that the plaintiff undergo a biopsy or return for a follow-up mammogram in three months. Furthermore, it is unclear from the record whether any of the clinic’s doctors (Dr. Min as well as the other doctors who examined plaintiff for the unrelated conditions) had read the radiologist’s report, had assumed that plaintiff had been informed of its results and recommendations, or had assumed that plaintiff would be undergoing another mammogram or a biopsy.

Therefore, while it cannot be said that treatment was explicitly ongoing, it also cannot be said that the doctors concluded that the plaintiff’s treatment for this condition was complete or even that plaintiff had been explicitly told that she would not have to return for further treatment for this condition. Thus, plaintiff’s time to file a notice of claim began to run out after her last appointment at the clinic on or about May 29, 1991, after which she says she decided to terminate her relationship with the defendants and initiate legal action. Since her notice of claim was served on or about June 13, 1991, it should have been deemed timely. Concur—Murphy, P. J., Rubin and Andrias, JJ.