Baltzer v. Westchester Med. Ctr.

209 A.D.3d 815

176 N.Y.S.3d 153

Jonathan BALTZER, respondent,

v.WESTCHESTER MEDICAL CENTER, appellant, et al., defendant.

2020–04119

Index No. 65456/19

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 6, 2022

October 19, 2022

Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, NY (William H. Bave, Jr., and Joel Hirschfeld of counsel), for appellant.

Shoshana T. Bookson (Pollack, Pollack, Isaac & DeCicco, New York, NY [Brian J. Isaac and Christopher J. Soverow ], of counsel), for respondent.

HECTOR D. LASALLE, P.J., ROBERT J. MILLER, LARA J. GENOVESI, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice, the defendant Westchester Medical Center appeals from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated April 24, 2020. The order, insofar as appealed from, denied that branch of that defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the causes of action based on treatment rendered during the plaintiff's admission to the defendant Westchester Medical Center between January 6, 2017, and April 7, 2017, insofar as asserted against the defendant Westchester Medical Center, as time-barred.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Westchester Medical Center which was pursuant to CPLR 3211(a)(5) to dismiss the causes of action based on treatment rendered during the plaintiff's admission to the defendant Westchester Medical Center between January 6, 2017, and April 7, 2017, insofar as asserted against that defendant, as time-barred, is granted.

Between January 6, 2017, and April 7, 2017, the plaintiff was hospitalized at the defendant Westchester Medical Center (hereinafter WMC), where he allegedly developed severe decubitus ulcers, or pressure sores. After his discharge, he was treated for this condition at several other medical facilities. He returned to WMC for an unrelated outpatient procedure in September 2018. In May 2019, the plaintiff began a course of treatment for his decubitus ulcers with Hisham Hourani of the Institute for Wound and Hyperbaric Medicine at New York Presbyterian/Hudson Valley Hospital. Hourani subsequently referred the plaintiff to WMC, where between July 25, 2019, and July 29, 2019, he was evaluated for surgical management of the worsening decubitus ulcer located on his left hip joint.

On September 26, 2019, the plaintiff commenced the instant action to recover damages for medical malpractice. WMC, a public corporation, moved pursuant to CPLR 3211(a)(5) and General Municipal Law § 50–e(1)(a) to dismiss the complaint insofar as asserted against it on the grounds, among others, that the complaint was time-barred and that the plaintiff failed to serve WMC with a notice of claim. The plaintiff cross-moved, inter alia, for leave to serve a late notice of claim, and for leave to amend the complaint to include allegations regarding WMC's treatment of the plaintiff in July 2019. By order dated April 24, 2020, the Supreme Court, inter alia, denied that branch of WMC's motion which was pursuant to CPLR 3211(a)(5) to dismiss the causes of action based on treatment rendered during the plaintiff's admission to WMC between January 6, 2017, and April 7, 2017, insofar as asserted against WMC, as time-barred. WMC appeals.

"A medical malpractice action ‘accrues on the date when the alleged original negligent act or omission occurred’ " ( Ortiz v. New York City Health & Hosps. Corp., 187 A.D.3d 929, 930, 130 N.Y.S.3d 702, quoting Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291, 295, 670 N.Y.S.2d 169, 693 N.E.2d 196 ). "However, the continuous treatment doctrine may toll the 90–day period within which the notice of claim must be filed" ( Smith v. Cooper, 172 A.D.3d 776, 777, 99 N.Y.S.3d 435 ). "Under the continuous treatment doctrine, the limitations period does not begin to run until the end of the course of treatment if three conditions are met: (1) the patient continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period; (2) the course of treatment was for the same conditions or complaints underlying the plaintiff's medical malpractice claim; and (3) the treatment is continuous" ( Mello v. Long Is. Vitreo–Retinal Consultant, P.C., 172 A.D.3d 849, 850, 99 N.Y.S.3d 414 [internal quotation marks omitted]). "Included within the scope of ‘continuous treatment’ is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment" ( McDermott v. Torre, 56 N.Y.2d 399, 406, 452 N.Y.S.2d 351, 437 N.E.2d 1108 ). "Medical visits concerning matters unrelated to the condition at issue giving rise to the claim are insufficient to invoke the benefit of the doctrine" ( Smith v. Cooper, 172 A.D.3d 776, 777–778, 99 N.Y.S.3d 435 ; see Plummer v. New York City Health & Hosps. Corp., 98 N.Y.2d 263, 268, 746 N.Y.S.2d 647, 774 N.E.2d 712 ).

A defendant who seeks dismissal of a cause of action pursuant to CPLR 3211(a)(5) "on the ground that it is barred by the statute of limitations bears the initial burden of [demonstrating], prima facie, that the time in which to commence [the] action has expired" ( Mello v. Long Is. Vitreo–Retinal Consultant, P.C., 172 A.D.3d at 850, 99 N.Y.S.3d 414 ; see Campone v. Panos, 142 A.D.3d 1126, 1127, 38 N.Y.S.3d 226 ). "...