___ 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.