___ AD3d ___, ___ NYS3d ___, 2015 NY Slip Op 04199 [1st Dept., 2015]
In this medical malpractice case, the defendant moved for summary judgment on limitations grounds, and the plaintiff opposed, claiming a continuous course of treatment.
In June of 2002, the defendant Dr. Wu diagnosed certain growths as fibroids. Between then and September, 2009, the plaintiff and Dr. Wu agreed to monitor the fibroids instead of removing them. When the plaintiff returned for follow-up visits, Dr. Wu asked about the fibroids, monitoring them through the use of ultrasound and physical examinations. When the plaintiff eventually decided to remove the fibroids through surgery, she consulted with Dr. Wu. The plaintiff did not, however, return for follow-up visits each year, due to work and travel.
Unfortunately, the growths were cancerous tumors instead of fibroids, and plaintiff sued for the misdiagnosis.
Dr. Wu’s motion was to dismiss so much of plaintiff’s claim as concerned treatment earlier than December 4, 2007. The plaintiff’s showing of the facts recited, however, was sufficient to raise a triable issue of fact as to whether there had been a continuous course of treatment running from the initial diagnosis of fibroids, and so the motion was properly denied.
Failure-to-diagnose cases present a trap for medical malpractice plaintiffs, especially where the undiagnosed condition, as in many cancer cases, goes unrecognized for years. Even where the plaintiff continues to go to the same physician regularly, who just as regularly fails to recognize the condition, the facts necessary to invoke the “continuous course of treatment” toll of the statute of limitations may not exist, for the mere persistence of a doctor-patient relationship is not sufficient. Twenty-four years ago, in Nykorchuck v. Henriques, 78 N.Y.2d 255  the Court of Appeals held that “[w]hile the failure to treat a condition may well be negligent, we cannot accept the self-contradictory proposition that the failure to establish a course of treatment is a course of treatment.” The doctrine, now codified in CPLR 214-a, is intended to protect the patient from the dilemma of having to interrupt a course of treatment by commencing a malpractice action against the very doctor who is treating her. In the failure-to-diagnose case, the fact that the plaintiff was unaware of her condition and therefore could not have been tempted to interrupt her treatment in order to commence a lawsuit meant that the application of the doctrine would not serve its purpose. The Court has reiterated its adherence to this interpretation of the rule (Gordon v. Magun, 83 N.Y.2d 881 ; Young v NYC Health & Hospitals Corp., 91 NY2d 291 ).
The complete failure to diagnose the existence of any condition must be distinguished from the misdiagnosis case, as here, where the defendant physician establishes a course of treatment adhered to by physician and patient over an extended period. The allegation of malpractice consists, of course, in the fact that the course of treatment is directed to the wrong condition. The purpose of the rule is served by its application to such cases.