The circumstances before the court in Gomez concerned the second and third elements of the doctrine. It was the defendants’ position that: (a) continuous treatment ended with the November 1999 visit, and that the May 2000 visit did not involve post-operative care; (b) the visits to the other ophthalmologist in April 2002 severed the ongoing relationship with the defendant doctor prior to May 2002; and (c) the 24-month gap between the visits of May 2000 and May 2002 vitiated continuous treatment.
Same Conditions
The defendants’ argument regarding the May 2000 visit concerned the second element of the court’s analysis – whether the treatment was for the same conditions or complaints underlying the claim of malpractice. In arguing that it was not, the defendants relied upon their records, which indicated for insurance purposes that the visit was not for post-operative care. It was the defendants’ position that if the visit was not for post-operative care, it could not qualify as continuous treatment and could not “act as a bridge to her last visit on May 16, 2002 . . . .”
The court found that this entry in the defendants’ chart “cannot be viewed as dispositive” on the issue of whether the visit involved post-operative care. It noted that the entry “conceivably could have been self-serving in light of [plaintiff's] ongoing complaints . . . ,” and that the defendant testified that the notation was made to assure coverage under a new insurance policy. However, the court further commented that the “self-serving statement” in the plaintiff’s affidavit that all visits after November 1999 were for post-operative complications and complaints related to the LASIK surgery was also not dispositive, because continuous treatment “must be anticipated by both the physician and the patient.” In this light, we note, the plaintiff’s statement would have been sufficient to establish an issue of fact if it indicated that the defendant instructed her to return if the condition did not improve in a few months.
Nevertheless, the court found that summary judgment was precluded based upon what it termed “the objective facts.” It found that at the May 2000 visit, the plaintiff complained of glare, blurred vision, fogging of her eye, and an impaired ability to read, and that the glare and blurred vision “mimicked some of the complaints” made in November 1999. Since glare and blurred vision were among the risk factors the defendant claimed he disclosed, there was “an objective continuity” from November 1999 to May 2000 of the complaints expressed to the doctor, and a correlation of those complaints with the surgery.
Significantly, the court found that the fact that the May 2000 visit was not scheduled at the conclusion of the November 1999 visit was not dispositive, because “as a practical matter, it is not always possible to know at the conclusion of one visit with a physician whether a further visit with the physician may become indicated for the same condition within a reasonable time thereafter.” Under this analysis, there was an issue of fact as to whether the May 2000 visit was part of a continuous course of treatment.
Continuous Treatment Issue
The next issue was whether the visits in April 2002 to the other ophthalmologist severed the ongoing relationship with the defendant doctor. This addresses the third element – whether the treatment was “continuous.” Before describing the three elements of the doctrine, the court observed:
The defendants argued that this relationship between the defendant doctor and the plaintiff was severed when the plaintiff saw the other ophthalmologist, and that her visit to the defendant in May 2002 was, at best, a renewal.
The court found that the “continuing ‘trust and confidence’ of a patient in the physician is, by nature, a question of fact requiring an examination of the unique facts and circumstances of each case.” It noted that the plaintiff went to the other ophthalmologist to obtain new contact lenses, and that the evidence suggested no alternative basis for seeing him. Since that doctor necessarily performed a full eye exam and discussed with the plaintiff the condition of her eyes, it could not be stated as a matter of law that the visits manifested a termination of the relationship with the defendant regarding the surgery and complications, particularly when she consulted with the defendant only a month later.
Gap in Treatment
The last issue resolved by the court was whether the May 2002 visit was continuous treatment, or whether it was breached by the 24-month gap since the previous visit. This too relates to the third element. The court found issues of fact. It noted that the complaints in May 2002 involved dry eyes and a slight decrease in visual acuity, which “arguably relate to earlier complaints and to the original LASIK surgery.”
With regard to the two-year gap, the court noted that there is no “bright line between treatment that is sufficiently proximate in time as to be deemed ‘continuous,’ and treatment that is too chronologically remote to constitute a continuation of earlier treatment.” It then cited a half-dozen cases involving gaps ranging from 22 to 27 months,1 and concluded that while this gap extended to “almost the outer reaches of continuous treatment case law, it does not exceed the limits of decisional authority,” and did not support a finding of no continuous treatment at a matter of law.
We note that in Massie v. Crawford, 78 NY2d 516, 519 (1991), the Court of Appeals expressly rejected a rule that gaps which exceed two years and six months (the length of the statute of limitations) do not “per se” preclude the application of the continuous treatment doctrine. See also Swift v. Coleman, 196 AD2d 150, 152 (3d Dept. 1994); Spear v. Rish, 161 AD2d 197, 198 (1st Dept. 1990); Shumway v. De Laus, 152 AD2d 951 (4th Dept. 1989).
In Parker v. Jankunas, 227 AD2d 537 (2d Dept. 1996), the Second Department found that continuous treatment existed over a 16-year period despite the existence of “three intervals between visits which were longer than two and one-half years,” and in Lomber v. Farrow, 91 AD2d 725 (3d Dept. 1982), there was continuous treatment despite a 44-month gap before the last treatment. These decisions confirm the observation in Gomez that there is no bright line rule delineating the point at which a gap in treatment becomes so long as to preclude a finding of continuous treatment as a matter of law. Instead, it is the circumstances of the treatment that dictate whether the doctrine can apply.
Other Issues
One final aspect of the Gomez opinion that warrants comment is the court’s statement that continuing efforts to arrive at a diagnosis and failures to diagnose a condition that prevents treatment fall short of continuous treatment. As demonstrated by the cases cited by the court for that proposition – Young v. New York City Health & Hospitals Corp., 91 NY2d 291, 297 (1998), Nykorchuck v. Henriques, 78 NY2d 255, 259 (1991), and McDermott v. Torre, 56 NY2d 399, 406 (1982) – it is the rule that the continuing nature of a diagnosis and a continuous failure to make a proper diagnosis do not satisfy the doctrine. However, this should not be misconstrued as meaning that claims for failure to arrive at a proper diagnosis cannot be subject to the continuous treatment doctrine.
Numerous cases have recognized the applicability of continuous treatment in cases where there is a failure to diagnose a condition – typically cancer.2 Usually, the applicability of the doctrine in such cases turns on the existence of ongoing monitoring of a condition. For the development of a disease, although continuous, ongoing treatment of an erroneously diagnosed condition will also suffice.
The court’s decision in Gomez provides a fresh perspective on continuous treatment, and its elemental analysis of the doctrine should be helpful in providing an organizational framework for determining its applicability in future cases. Unless and until the Legislature brings this state into the modern era by adopting a discovery rule in malpractice actions, the continuous treatment doctrine will remain a critical and highly litigated component of the malpractice landscape.
Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.
Endnotes:
1. See Gehbauer v. Baker, 292 AD2d 255 (1st Dept. 2002) (25-month gap); Klotz v. Rabinowitz, 252 AD2d 542 (2d Dept. 1998) (27-month gap); Edmonds v. Getchonis, 150 AD2d 879 (3d Dept. 1989) (27-month gap); Siegel v. Wank, 183 AD2d 158 (3d Dept. 1992) (27-month gap); Levy v. Schnader, 96 AD2d 854 (2d Dept. 1983) (27-month gap); Rudolph v. Jerry Lynn D.D.S., P.C., 16 A.D.3d 261 (1st Dept. 2005) (22-month gap).
2. See, e.g., Sosnoff v. Jackman, 45 AD3d 568, 571 (2d Dept. 2007); Mosezhnik v. Berenstein, 33 AD3d 895, 896 (2d Dept. 2006); Prinz-Schwartz v. Levitan, 17 AD3d 175, 178-79 (1st Dept. 2005); Dolce v. Powalski, 13 AD3d 1200 (4th Dept. 2004); Melup v. Morrisey, 3 AD3d 391 (1st Dept. 2004); Close v. Gorman, 284 AD2d 1013, 1014 (4th Dept. 2001); Porubic v. Oberlander, 274 AD2d 316 (1st Dept. 2000); Oksman v. City of New York, 271 AD2d 213, 214-15 (1st Dept. 2000); Traphagen v. Robert Packer Hosp., 270 AD2d 777, 778 (3d Dept. 2000); Canter v. East Nassau Med. Group, 270 AD2d 381, 382 (2d Dept. 2000); Pace v. Caron, 232 AD2d 617 (2d Dept. 1996); Kurland v. McElwian, 231 AD2d 685 (2d Dept. 1996); Bartolo v. Monagco, 202 AD2d 535 (2d Dept. 1994); Djordevic v. Wickham, 200 AD2d 421 (1st Dept. 1994); Garcia-Alano v. Guttman Breast Diagnostic Inst., 188 AD2d 262 (1st Dept. 1992).
