Prinz-Schwartz v. Levitan

Buckley, P.J., dissents in a memorandum as follows:

I would affirm Supreme Court’s dismissal of any medical malpractice claims accruing prior to June 10, 1999, 21h years before commencement of the action.

Plaintiff s annual breast examinations, and two semi-annual examinations, from 1988 through 1998 constituted routine, periodic examinations and not a continuous course of treatment for a particular condition (see Nykorchuck v Henriques, 78 NY2d 255 [1991]; Massie v Crawford, 78 NY2d 516 [1991]; Shiffman v Harris, 280 AD2d 752 [2001]). The fact that certain irregularities were noted in 1988, 1992 and 1995 does not alter that *180conclusion, since the results were interpreted as negative and all other examinations, up to 2000, were completely normal. Naturally, the breasts were being “monitored” for the purpose of detecting breast cancer; that is the very reason for the examinations. Similarly, a comparison of new results with prior medical history is a prudent means of making the most accurate diagnosis possible.

Under the majority’s analysis, an issue of fact as to continuous treatment would be raised in almost all situations where a patient returns to the same physician for annual checkups, provided the same area or areas are examined. Thus, the continuous treatment exception would become the general rule for failure to diagnose claims, and the statute of limitations would be tolled from the earliest patient visit. However, neither a continuing relationship between a physician and a patient, nor the continuing nature of a diagnosis, is sufficient to meet the requirements of the continuous treatment doctrine (see Nykorchuck, 78 NY2d at 259).

The rationale underlying the continuous treatment doctrine is that a patient should not have to interrupt ongoing treatment by the attending physician, who is in the best position to correct his malpractice; the doctrine is not designed to link every visit to a physician to create a new form of claim (see id. at 258).

The instant case does not fall within the unique set of circumstances present in Oksman v City of New York (271 AD2d 213 [2000]), relied upon by the majority. In Oksman, which involved the 90-day notice of claim period applicable to public corporations, the plaintiff visited the defendant clinic 15 times over the course of a single year, and there was evidence that the doctors advised plaintiff they would “keep an eye on” lobulated soft tissue density in her left breast, the location of her original and persistent complaints (id. at 214). Thus, that case presented more than yearly, routine examinations, as in the case at hand.