Rivera v. N.Y.C. Health & Hosp. Corp.

209 N.Y.S.3d 808

Migdalia RIVERA, Plaintiff,

v.NEW YORK CITY HEALTH & HOSPITALS CORP., Defendants.

Supreme Court, Kings County.

Decided on April 9, 2024

Plaintiff, Stephen Larocca, Esq. (slarocca@burnsharris.com), Harris, Keenan & Goldfarb PLLC, 233 Broadway, Suite 900 9th Floor, New York, NY 10279, 212-393-1000

Defendant, Joe B. Swart, Esq. (joe.swart@wilsonelser.com), Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 150 East 42nd Street, New York, NY 10017, 212-915-5483

Consuelo Mallafre Melendez, J.

Defendant New York City Health and Hospitals Corporation ("HHC") moves (Seq. No. 3) for an Order, pursuant to CPLR 3212, granting summary judgment and dismissing all Plaintiff's claims against the movant, on the ground that no material issues of fact are in dispute. Within the substance of the moving papers, the defendant also argues that any claims arising from treatment prior to August 19, 2017, should be dismissed as outside the statute of limitations for purposes of the Notice of Claim, and that any claims interposed in the complaint arising from treatment prior to February 3, 2017, should be dismissed as time-barred by the statute of limitations. Plaintiff opposes the motion with respect to each of these issues.

Plaintiff Migdalia Rivera commenced this action on May 4, 2018, asserting claims of medical malpractice in connection to treatment and care rendered at Woodhull Medical Center ("Woodhull"), a HHC hospital, from approximately January 2011 through August 23, 2017. Plaintiff alleges her providers failed to diagnose a cervical rib on her right side and related complications, which led to thrombosis (blood clot) formation in her right arm. Plaintiff specifically alleges that the cervical rib was visible on a CT scan performed on September 8, 2015, but it was not noticed or recorded in the radiology report.

Plaintiff treated at Woodhull as her primary health care provider for various ailments since June 2003. She first presented with complaints of neck and shoulder pain to Woodhull attending physician, Wasfy Zaki, M.D. ("Dr. Zaki") on November 9, 2010. She was referred to the neurology department for a cervical spine MRI on January 27, 2011, which was reviewed and reported by Mark Richard Shafer, M.D. ("Dr. Shafer"). Plaintiff treated for cervicalgia and was prescribed medications in February 2011, with a follow-up appointment in June 2011.

Plaintiff received physical therapy at Woodhull for back pain from September 2011 through January 2012. Between November 2013 and September 2014, she was treated at Woodhull for an earache and abdominal pain, and she also treated at Woodhull’s hematology clinic for hepatitis C.

On September 16, 2014, she was treated at Woodhull’s emergency department with shortness of breath and numbness in her left arm and shoulder. On September 26, 2014, she appeared again with burning in her right arm and hand. On October 3, 2014, she complained of left arm pain which was attributed to diabetes and a pinched nerve. She was seen in the emergency department and medical clinic on multiple occasions in 2014-2015 for diabetes, arthritis, GERD, depression, hepatitis C, chest pain, and pain in her left upper extremities, including tendonitis which she attributed to a work accident. She was seen by Dr. Zaki in January 2015 and referred for physical therapy and rehabilitation for left upper extremity pain through April 2015.

Plaintiff presented at the Woodhull emergency department and ENT clinic with ear pain in August 2015. On examination at the ENT clinic, a lump was found in the right side of her neck, and a CT scan with contrast was performed on September 8, 2015. Dr. Shafer was the radiology employee at Woodhull who reviewed and reported the CT scan results. In his report, he noted the presence of lymph nodes and no evidence of a definite mass, but he did not include any findings regarding the cervical rib or subclavian artery. Upon review of the same CT films, both parties’ radiology experts affirm that the cervical rib is visible (see Dr. Sherman aff, ¶ 16; Plaintiff Expert B aff, ¶ 8). Dr. Shafer also identified the cervical rib in multiple images during his deposition (Dr. Shafer deposition tr at 55-63). During a follow-up appointment on September 17, 2015, the ENT physician recorded the CT scan report as "clinically negative," and Plaintiff was advised to follow up with the pain management and neurology clinics.

On March 14, 2016, Plaintiff saw Dr. Zaki for prescription refills and care for her diabetes and hepatitis. On a follow-up visit on June 20, 2016, Plaintiff complained to Dr. Zaki of neck pain in addition to her other symptoms.

On July 13, 2017, Plaintiff presented in the emergency department with sharp pain radiating from her light hand and followed up with the hand clinic, where she was diagnosed with osteoarthritis. She also had surgery to remove a ganglion cyst on August 9. On August 23, 2017, Plaintiff saw Dr. Zaki for a regular follow-up appointment and complained of pain in her right upper arm, aggravated by movement, for the last month. On examination, he found no discoloration, swelling, or tenderness. He diagnosed Plaintiff with a muscle sprain and diabetic neuropathy and prescribed Gabapentin and Tylenol.

On August 28, 2017, Plaintiff experienced sharp pain and coldness/reduction in pulse in her right arm while in Cuba. She was admitted to the Gira Garcia Central Clinic, where a CT angiography revealed aneurysmal dilatation and a blood clot in the right subclavian artery caused by a cervical rib. The physicians were able to perform a thrombectomy to clear the blood clot and reestablish blood flow. On September 26, 2017, Plaintiff underwent resection of the cervical rib and right subclavian to axillary vascular bypass at NYU Langone/Lutheran Medical Center.

Plaintiff alleges that HHC/Woodhull departed from good and accepted standards of medical practice by failing to properly diagnose her cervical rib anomaly, despite the images from her CT scan on September 8, 2015, and her history of complaints of neck, shoulder, and arm/hand pain. Plaintiff further alleges that these departures were a proximate cause of her alleged injuries, including the formation of a blood clot, the need for an emergency pro- cedure, and persisting numbness and disability to her right arm.

As an initial matter, HHC seeks to dismiss all Plaintiff's claims pertaining to treatment prior to August 19, 2017, on the grounds that allegations of malpractice for any medical treatment prior to the 90 days before service of the Notice of Claim on November 17, 2017 are time-barred. Similarly, HHC argues that any claims pertaining to treatment before February 3, 2017, a year and 90 days prior to the service of the summons and complaint, are time-barred by the statute of limitations (see General Municipal Law § 50-i [1]).

[1, 2] Pursuant to General Municipal Law § 50-e, a notice of claim against a municipal corporation must be served within 90 days after the claim arises. A medical malpractice claim "accrues on the date when the alleged original negligent act or omission occurred" (Ortiz v. New York City Health & Hospitals Corporation, 187 A.D.3d 929, 930, 130 N.Y.S.3d 702 [2d Dept. 2020], quoting Young v. New York City Health & Hospitals Corp., 91 N.Y.2d 291, 295, 670 N.Y.S.2d 169, 693 N.E.2d 196 [1998]). In addition, the action itself must be commenced within one year and 90 days after the claim arises, pursuant to General Municipal Law § 50-i (1). However, "where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure," the limitations period does not begin to run until the last date of treatment for that condition (see CPLR 214-a; Gray v. Wyckoff Heights Medical Center, 155 A.D.3d 616, 62 N.Y.S.3d 540 [2d Dept. 2017]). The continuous treatment doctrine also tolls the 90-day period within which the plaintiff must file their notice of claim (Baltzer v. Westchester Medical Center, 209 A.D.3d 815, 816, 176 N.Y.S.3d 153 [2d Dept. 2022]; see also Plummer ex rel. Heron v. New York City Health and Hospitals Corp., 98 N.Y.2d 263, 746 N.Y.S.2d 647, 774 N.E.2d 712 [2002]).

The essence of the continuous treatment toll is the "continuing trust and confidence" of the provider-patient relationship, requiring an inquiry into "the unique facts and circumstances of each case" (Gomez v. Katz, 61 A.D.3d 108, 111-115, 874 N.Y.S.2d 161 [2d Dept. 2009]). The Second Department has outlined the three fundamental elements of such treatment: "(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’ " (Hillary v. Gerstein, 178 A.D.3d 674, 114 N.Y.S.3d 440 [2d Dept. 2019], citing Gomez).

[3–5] The "actual course of treatment" of the first element requires a showing beyond a general doctor/patient relationship; this element "speaks to affirmative and ongoing conduct by the physician such as surgery, therapy, or the prescription of medications" (Gomez, at 112, 874 N.Y.S.2d 161). Under the second element, there must be at least some "objective continuity" between the plaintiff's complaints at the times at issue, and those complaints must correlate to the underlying malpractice claim (id., at 114, 874 N.Y.S.2d 161). Finally, the "continuous" element is present "when further treatment is explicitly anticipated by both physician and patient," which can be demonstrated by a scheduled or agreed-upon future appointment, or where "the patient timely initiates a return visit to complain about and seek further treatment for conditions related to the earlier treatment" (id., at 113, 874 N.Y.S.2d 161).

[6] Additionally, the continuous treatment doctrine applies to a patient who was treated by multiple doctors employed by the...