Plaintiff Michelle Lewis brought a medical malpractice action based on negligence against Dr. Frederick D. Rutkovsky and LHHN Med P.C. The claim alleges that Dr. Rutkovsky failed to diagnose a benign brain tumor that was later discovered. Her allegations state that the doctor failed to detect and treat this meningioma and she ended up undergoing a left frontal parasagittal craniotomy, which left her as legally blind.
Lewis asserts that she repeatedly complained during her visits that she suffered from migraine headaches, vision problems, and other related conditions. On one occasion while at his office, the plaintiff explained to the doctor that the symptoms seemed to be worsening and that ibuprofen was no longer affording her any relief from the headaches.
Amid the proceedings, the defense motioned for a summary judgment based on the expiration of the statute of limitations. The motion proactively addressed the continuous treatment doctrine, a likely defense, explaining that the plaintiff had not been under the care of Dr. Rutkovsky for over two years. The plaintiff responded to the defense motion by stating that their motion was not filed in time according to procedure.
The plaintiff explained that the rules outlined in the Preliminary Conference required such motions to be made within 60 days after the Note of Issue, unless the court stated something to the contrary. The plaintiff also responded to the statute of limitations challenge by arguing that the continuous treatment doctrine afforded her the time for filing. The defense explained that their motion was timely because they were delayed by a major storm which forced the court to temporarily close for 1.5 days.
The New York Civil Practice Law and Rules (CPLR) formally allows for 120 days from the note of issue filing for motions for summary judgment. Courts have latitude within the 120-day period to establish their own deadline period. If such a motion is not made within this deadline, there must be good cause, which is at the discretion of the court. The court confirmed that a major storm had created a “state of emergency” that led to the court’s early closure on the date the motion would have been processed. The closure remained in force for the following day as well and the Governor signed an order to extend legal deadlines accordingly.
The continuous treatment doctrine in New York applies to medical malpractice actions when the negligent acts were continuous and based on the original problem (complaint). In cases involving a failure to diagnose, the doctrine will toll the statute of limitations as long as the treatment still involves this original condition. The plaintiff had testified that she continuously sought treatment for her headaches as part of her monthly doctor visits. The court deemed the plaintiff’s contention as valid and dismissed the defense motion.