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Gap In Treatment Not a Toll for Limitations Statute (NY)

May 9, 2017

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The New York statute of limitations for a medical malpractice action is two and a half years. The time begins to accrue either from the date of the malpractice or from the time of last treatment.  So what if a plaintiff stops treating and then goes back to the doctor more than 2 ½ years later?
In <a href="http://blog.wcmlaw.com/wp-content/uploads/2017/05/Clifford-v-Kates-2017-NY-Slip-Op-50541.pdf">Clifford v Kates </a><a href="http://blog.wcmlaw.com/wp-content/uploads/2017/05/Clifford-v-Kates-2017-NY-Slip-Op-50541.pdf"> </a>plaintiff commenced an action against Dr. Stephen Kates and the various medical institutions with which he was affiliated.  Plaintiff underwent a total hip replacement with Dr. Kates to treat her right hip pain in 2008.  After the surgery, plaintiff was experiencing pain, and followed-up with Dr. Kates for a period of approximately six months into January 2009.  She became disillusioned with the Dr. Kates and sought treatment with various other doctors.  She also consulted with an attorney who sent authorizations to the hospital and Dr. Kates for her medical records for litigation purposes.  In 2011, approximately two years after her last appointment with Dr. Kates, she returned to him once more.
Plaintiff then commenced an action against Dr. Kates in 2013 alleging medical malpractice. Defendants moved for summary judgment, claiming that the action did not fall within the statute of limitations, since it was brought more than 2 ½ half years after plaintiff’s post-surgical treatment with Dr. Kates in 2009.   Plaintiff argued that her visit in 2011 established that the physician-patient relationship was still in effect, and thus her treatment was ongoing until that date.
The Court ruled that the gap called into question the “continuous” nature of the relationship, and in particular held that the service of authorizations stopped the tolling of the statute. As such, the Court granted defendants’ motion for summary judgment.
Thanks to Christopher Gioia for his contribution.
For more information contact Denise Fontana Ricci at <a href="mailto:dricci@wcmlaw.com">dricci@wcmlaw.com</a>.
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