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The Continuous Doctrine is Under Attack in New York

September 4, 2017
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Our New York City medical malpractice lawyers know that the continuous treatment doctrine is one of the best tools that prevent negligent doctors from using the statute of limitations to deprive patients who have been victimized by professional negligence, from their just recovery. The continuous doctrine in medical malpractice cases, holds that, in actions based on a failure to diagnose a condition, the limitations period is tolled as long as the symptoms being treated indicate the condition’s existence. This exception to the statute of limitations is important because in New York, the statute of limitations is only two and a half years, unlike the general negligence statute of limitations, which is three years.  The underlying principal is that the innocent Plaintiff should not be expected to sue their doctor while they are being treated by the doctor. Another rationale, is that the statute should not run while the doctor is continuously negligent in failing to diagnose the condition.

 

In a recent decision, there was a split in the New York First Appellate Department, where one Judge attempted to tighten the standards in applying the continuous treatment doctrine.  The dissenting Judge focused on a lack of regular appointments for the condition, but the majority reaffirmed that so long as the complaint raises factual issues as to whether the doctrine applies, the complaint should not be dismissed. Likewise, the Court’s majority held that jurisprudence does not require that a plaintiff have attended ‘regular’ appointments in the sense that the appointments were scheduled for the sole purpose of treating the allegedly misdiagnosed condition. The majority also rebuffed the dissenting Judge’s opinion, which sought to limit the analysis to what was contained in the doctor’s chart. The majority on the other hand focused on the patient’s testimony that she constantly complained about the symptoms and the doctor did nothing. Instead, the correct inquiry is whether the defendant doctor treated symptoms indicated the presence of the condition that was not properly diagnosed.  Any other view would reward doctors who do not keep meticulous records and who fail to document their patients symptoms, only to later allow them to argue that they did not treat these symptoms and that the statute of limitations should apply to bar the claims.  This is especially egregious when the doctor’s misdiagnosis caused the patient not to  seek the treatment which they need, in the first place.

Our Westchester medical malpractice attorneys agree with the majority opinion and should not let a doctor who misdiagnosed a condition off the hook because of a lack of regular appointments, especially in cases where the doctor told the patient there was nothing wrong and they continued to return and make complaints.

In cases like cancer or any other case where there is an illness that progresses, where the person could have been treated early on, the delay in treatment caused by the doctor’s failure to investigate the symptoms and order appropriate diagnostic tests can cause the cancer patient their best chance at a prolonged life. Our aggressive New York personal injury attorneys will continue to fight against doctors whose negligence causes their patients harm.

 

 

 
The Law Offices of Michael H. Joseph