Plaintiff Established Continuous Treatment Doctrine in Medical Malpractice

By Michael Joseph on November 08, 2018

Our New York City medical malpractice and wrongful death lawyers won a  recent victory in the Bronx Supreme Court.  Our attorneys established a prima facie case that the Defendant doctor  failed to appropriately order tests for Plaintiff’s persistent complaints of abdominal and pelvic pain which was ultimately diagnosed as ovarian cancer. On October 2008, Plaintiff sought treatment from the defendant doctor, complaining of left lower abdominal pain.  Plaintiff complained of pain in lower quadrant which is where the ovaries are located but was only advised painkiller. The pain continued and until December 2008 and the Plaintiff underwent an ultrasound and mammogram. Plaintiff returned again complaining of the same pain and the defendant prescribed her painkillers. Defendant further advised the Plaintiff to follow up as needed. During 2009, Plaintiff continued to experience pain and called the Defendant every two months reporting that she still had the same pain but the Defendant advised her to keep taking the pain killers. Finally after numerous calls, Plaintiff got an appointment on February, 2011. Furthermore, during some calls in 2009 and 2010, Plaintiff requested to be sent for a CAT scan instead she was sent for a PAP smear and told by the Defendant to the Plaintiff to continue with the painkiller. The Defendant was never able to identify the cause of pain. It is to be noted that when a doctor cannot identify the source of pain, he should do other tests. Plaintiff called the Defendant’s office again as her pain was getting worse and was given an appointment for a transvaginal ultrasound and was told to keep taking painkillers until her next appointment. Soon she passed out at work and was transported to the hospital in an ambulance. A CAT scan revealed that the Plaintiff had stage IIIC metastatic ovarian cancer.

The Defendant's attorneys argued that Plaintiff claims are related to treatment prior to November 30, 2010 and therefore the case  was time barred by the statute of limitations. An action for medical malpractice must be commenced within two years and six months of the act, omission or failure complained of or from the last treatment where there has been continuous treatment. The tolling of the limitations period for continuous treatment applies only when the course of treatment that includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint. In the argument, our Plaintiff’s lawyers raised a question of fact as to the applicability of the continuous treatment doctrine sufficient to defeat the motion.  For the continuous treatment doctrine to apply, Plaintiff must seek and obtain an actual course of treatment from the defendant physician during the relevant period.  However, in this matter the court finds that there is a question as to whether there was continuous treatment as there was no complete discharge by the doctor and the visits ended on a non-final note with no resolution of Plaintiff’s complaints and an indication to return “when needed”. This constitutes medical advice.

A  Defendant seeking summary judgment in a medical malpractice action bears the burden of establishing that there was no departure from the standard of care or that any alleged departure did not proximately cause the Plaintiff’s injuries. The courts found that there were  as to whether Defendants failed to take appropriate tests to diagnose Plaintiff’s ovarian cancer and whether the failure  proximately caused  injury herein sufficient to defeat the motion. Our Plaintiff lawyers provided the court with the expert opinion, whcih established that the Defendant doctor continuously departed from accepted standards of care in not having the Plaintiff imaged and that if the Defendant Doctor had ordered a CAT scan in 2009 or 2010, the cancer would have been detected at either stage 1 or stage 2 which would have afforded Plaintiff a greater chance of survival. Our Plaintiff lawyers also argued that even if the Defendant had sent the plaintiff for a scan as late as February, 2011. Plaintiff would still have been in stage 3 but with a smaller tumor that was still treatable. The failure to order any imaging rendered the cancer incurable once detected.

The Court found that there is sufficient evidence from which a jury could find that the Defendant deviated from accepted standards of care by failing to order a CT scan when faced with persistent complaints of abdominal pain with an unknown cause and where the colon and bladder have been ruled out. Likewise, there is at least a question of fact as to whether this departure allowed the Plaintiff’s cancer to progress to the point where it was incurable. The court finds that this case presents conflicting expert opinions which require resolution by a jury and the motion is thus denied.

Our New York City Medical Malpractice and Wrongful Death lawyers look forward to getting our day in Court and will ask the jury to make this doctor finally take responsibility.

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