In last month's column, which focused on the Appellate Division, First Department's recent decision on continuous treatment in Devadas v. Niksarli, 120 A.D.3d 1000 (1st Dept. 2014), we noted that there have been several interesting Appellate Division decisions on the subject in the years since it had last been addressed in this column.1 Where applicable, the continuous treatment doctrine permits medical malpractice actions to be brought beyond the statutory two-and-a-half year period after the malpractice.

Devadas posed a somewhat unusual situation in that the continuity of treatment was premised, in part, on evidence that the defendant gave the plaintiff a lifetime guarantee relative to the operative procedure that was the subject of the malpractice claim. The other recent Appellate Division decisions of interest involve more typical circumstances. They are discussed in this month's column.

In adopting the continuous treatment doctrine as the law of this state in Borgia v. City of New York, 12 N.Y.2d 151, 155 (1962), the Court of Appeals held that it 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….” The court continues to adhere to that articulation of the rule.2 Whether ongoing treatment was related to the original condition or complaint is a frequent point of contention that has been addressed in several appellate decisions in recent years. The issue commonly arises in actions involving a delay in diagnosis. In such circumstances, it is often necessary to establish that the complaints that were the subject of ongoing treatment were related to the condition that went undiagnosed.