This column has often repeated the refrain that the statute of limitations applicable to medical malpractice cases in this state is one of the most unjust in the country. It can, and too often does, expire before victims have even the ability to know that they have been injured. That is because, other than with respect to foreign objects left in a patient’s body, New York does not have a rule that the statute begins to run at the time the patient discovers, or reasonably should discover, that he or she suffered injury as a result of malpractice. Almost all other jurisdictions have such a rule, and its absence in this state has had harsh consequences for countless malpractice victims. Efforts to pass legislation to end this injustice have repeatedly come up short.
One ameliorating provision of our statute is its codification of the continuous treatment doctrine, which takes on added importance due to the absence of a discovery rule. CPLR 214-a provides that a malpractice action must be commenced within 2 1/2 years of “the act, omission or failure complained of or the last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure….” We last addressed the issue nearly six years ago, discussing what was then a recent Second Department decision, which undertook a unique analysis of the issue.1 While there have since been several interesting Appellate Division decisions on the subject, one in particular stands out as meriting extended discussion, and it is the focus of this month’s column.
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