In 1967, at the age of 26, plaintiff began to undergo regular gynecological examinations in the office of defendant-doctor, an obstetrician-gynecologist. In April of 1969, plaintiff became pregnant for the first time. During the course of her pregnancy, she began to experience problems, including severe bleeding, which, according to defendant-doctor, indicated the possibility of a miscarriage. He thereupon prescribed medication which he said would help prevent a miscarriage. She took 100 pills a month for six months until, on 14 November 1969, she gave birth to a daughter. Following the birth, she continued her regular annual gynecological examinations and thereafter gave birth to two other daughters on 27 July 1973), and on 14 October 1974). During each of these pregnancies she was cared for and treated by defendant-doctor, who also delivered the children. After the third child’s birth, at plaintiff’s request, defendant-doctor performed a tubal ligation so that she would bear no more children. Plaintiff thereafter continued her regular annual gynecological examinations with defendant-doctor.
In November of 1978, plaintiff became concerned about a painful lump in her left breast. Defendant-doctor referred her to her family physician. The lump was found to be cancerous and, in December of 1978, plaintiff underwent a modified radical mastectomy of her left breast. After completion of her post-operative care, she returned for her annual visit to defendant-doctor’s office. Upon learning of her operation, he advised her to return twice yearly. Early in 1980, on one of her visits, plaintiff asked defendant-doctor whether the drug she had taken in 1969 was DES. He acknowledged that it was. According to a New York Injury Lawyer, in May of 1980, plaintiff began to develop severe back pain. In June of 1980, she had a positive bone scan, evidencing lesions in her thoracic spine. After 10 radiation treatments, she underwent a bilateral salpingo-oophorectomy (removal of both fallopian tubes and ovaries) for relief. By the fall of 1980, she began to experience new back pain. A bone scan administered in January of 1981 showed new areas of activity and lesions. Plaintiff is at present being treated for an estrogen related metastatic bone disease which has spread through her vertebrae to her right ribs and the right side of her skull.
Plaintiff and her husband hereafter commenced the instant action against defendant-doctor and the manufacturer and seller (defendant-company) of the DES which she took in 1969. A Staten Island Personal Injury Lawyer said the complaint stated three causes of action against each defendant: (1) on behalf of plaintiff, against defendant-doctor, alleging negligence and lack of informed consent; (2) on behalf of the husband, against defendant-doctor, alleging medical expenses and loss of services and society; (3) on behalf of plaintiff, against defendant-doctor, alleging negligent infliction of emotional distress (from fears that her 1st daughter would develop reproductive cancer as a result of her prenatal exposure to DES); (4) on behalf of plaintiff, against defendant-company, on a theory of strict products liability (defective product); (5) on behalf of the husband, against defendant-company, alleging medical expenses and loss of services and society; and (6) on behalf of plaintiff against defendant-company, alleging negligent infliction of emotional distress.
Defendants argue that the action is time barred on Statute of Limitation grounds; lack of merit; and failure to state a cause of action.
Were the plaintiff’s two subsequent pregnancies and her series of annual gynecological examinations constitute a continuous course of treatment sufficient to postpone the running of the Statute of Limitations?
The “continuous treatment” exception states that the time in which to bring a medical malpractice action is stayed “when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint”. The Court limited the doctrine to a continuous course of treatment related to the same original condition or complaint, for the same or related illness or injuries, continuing after the alleged acts of malpractice, but excluded those cases involving the mere continuity of a general physician-patient relationship. The rationale for the exception rests, in part, upon the principle that where a patient is being treated continuously for one condition, he or she should not have to interrupt that treatment in order to sue the physician; rather, the patient should be allowed to continue the treatment to its conclusio reposing trust and confidence in the physician, and the Statute of Limitations should not begin to run until that course of treatment has ended.
New York Courts have continued to elaborate upon the “continuous treatment” doctrine and held that a patient’s yearly checkup appointments for mammographies amounted to a series of discrete individual “treatments” and therefore did not constitute a “continuous course of treatment” sufficient to delay the running of the Statute of Limitations. A Westchester County Personal Injury Lawyer said the Courts further held that a series of mail and telephone contacts regarding the scheduling of an appointment did not constitute “treatment”; a series of routine pediatric examinations did not constitute a “continuous course of treatment”.
The “continuous treatment” exception would also not apply to a situation where a patient interrupted her treatment in disregard of her physician’s advice and then, eight and one-half months later, after she was admitted to the hospital under treatment by other physicians, her original physician visited her there and signed her discharge summary as this constituted a resumption and not a continuation of treatment. On the other hand, the “continuous treatment” doctrine can be applied to a situation in which, after operating on a patient, a physician continued to care for and observe him during post-operative visits, advising him that he had been cured, and the patient, complaining of pain in the same area, thereafter continued to return for further visits until the original allegedly faulty diagnosis was finally discovered.
On the basis of the foregoing cases and the legislative codification of the holdings thereof, it is thus clear that the facts as alleged by plaintiff do not bring her within the purview of the “continuous treatment” exception to the Statute of Limitations in medical malpractice actions.
Did the defendants have a “continuing duty to warn” plaintiff regarding the dangers of DES, as those dangers became known, and that this duty delayed the running of the Statute of Limitations?
It must be noted that plaintiff took DES during only one period in 1969 and, once she ingested the medication, the “treatment” in question ceased and the Statute of Limitations began to run. Since plaintiff’s allegations do not bring her within the purview of the “continuous treatment” exception, the Statute of Limitations began to run when the “treatment in question” ceased, that is, when plaintiff’s 1st daughter was born on 14 November 1969, or shortly thereafter when postoperative care ceased, and expired well before the commencement of this action.
Can defendant-company be liable on the same basis as defendant-doctor?
Even if the herein court were to conclude that the “continuous treatment” exception was somehow applicable to defendant-doctor, it would not similarly make the action timely against defendant-company. Courts have extended the applicability of the “continuous treatment” doctrine to third parties not directly involved in the physician-patient relationship, such as consulting physicians, laboratories, and manufacturers, only under very limited circumstances.
The court held, in a landmark case, that a pathologist who misdiagnosed a biopsy specimen would be liable under the same “continuous treatment” theory as the primary physicians who treated the patient since during the course of their treatment they continued to rely on the pathologist’s faulty diagnosis in assuring the patient that he did not have cancer. Thus, it was reasoned that his misdiagnosis was as much a part of the continuing malpractice as the physician’s continued reassurances.
However, the Court of Appeals held, in another case, that a pathology laboratory would not be liable on a “continuous treatment” theory for its misdiagnosis of a cancerous biopsy specimen where its action consisted of a one-time analysis and it had no continuing relationship, of an agency or any other nature, with the primary physician who continued to treat plaintiff for the condition in question.
In another case, the court, applying New York law, held that the “continuous treatment” exception would apply to the manufacturer of an inflatable mammary prosthesis in a case where the “continuous course of treatment” in question involved the fitting and continuing adjustment of the prosthesis in the patient’s body by the physician, since the device was an integral part of the treatment.
However, in another landmark case, in an action by a patient against both her physician and a manufacturer in connection with the continuing administration, over a period of years, of birth control pills, the Second Circuit Court of Appeals declined to follow the aforesaid ruling reasoning that it would rather await a ruling on the question by the New York Court of Appeals before finding a pill’s manufacturer liable under a “continuous treatment” theory.
On the basis of the abovementioned cases, the court finds that there is no reading of the allegations present under which defendant-company’s role in the treatment of plaintiff can be said to have extended past the birth of plaintiff’s 1st daughter. Thus, as to it, the Statute of Limitations began to run at that time and plaintiff’s action is untimely.
Is defendant-doctor estopped from raising the Statute of Limitations as a bar to plaintiff’s action because he knowingly concealed his malpractice from her and intentionally deceived her in order to prevent her from suing him?
On the facts as alleged, such contention is without basis.
The Court of Appeals has held in a number of cases that a defendant physician in a malpractice action might be equitably estopped from raising the Statute of Limitations as an affirmative defense where, through actual affirmative misrepresentations, he fraudulently concealed his malpractice from the patient by informing her that she was being cured (when in fact he knew this to be false), thereby causing her to continue her treatment with him in reliance on his advice and forego both seeking other treatment and suing him before the running of the Statute of Limitations. However, the court indicated that there had to be specific allegations of such fraudulent concealment in the complaint, or at least evidence in the record that might support such allegations, before the principle could be applied.
A reading of plaintiff’s complaint and the papers submitted on the motions disclose no such allegation or evidence. It contains no allegation that defendant-doctor actually knowingly concealed his malpractice or made fraudulent misrepresentations to plaintiff. Similarly, although plaintiff’s affidavit seeks to imply that defendant-doctor deliberately concealed from her the fact that he had given her DES in 1969 when she informed him of her breast cancer and subsequent mastectomy, the allegations in the record do not in any way indicate the kind of actual fraud necessary to create an equitable estoppel.
Was the complaint time-barred?
A cause of action for damages suffered as a result of exposure to a harmful substance accrues, the Statute of Limitations begins to run when the last exposure occurs, even though the actual injury (personal injury) may only become manifest many years later. In actions of negligence, damage is of the very gist and essence of the plaintiff’s cause.
Although negligence may endanger the person or property of another, there is no actionable wrong is committed if the danger is averted. It is only the injury to person or property arising from negligence which constitutes an invasion of a personal right, protected by law, and, therefore, an actionable wrong. Through lack of care, a person may set in motion forces which touch the person or property of another only after a long interval of time; and then only through new, fortuitous conditions. There can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury. Otherwise, in extreme cases, a cause of action might be barred before liability arose.
“That does not mean that the cause of action accrues only when the injured person knows or should know that the injury has occurred. The injury occurs when there is a wrongful invasion of personal or property rights and then the cause of action accrues. Except in cases of fraud where the statute expressly provides otherwise, the statutory period of limitations begins to run from the time when liability for wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury. Consequential damages may flow later from an injury too slight to be noticed at the time it is inflicted. No new cause of action accrues when such consequential damages arise. So far as such consequential damages may be reasonably anticipated, they may be included in a recovery for the original injury, though even at the time of the trial they may not yet exist. When substantial damage may result from any wrong affecting the person or property of another, a cause of action for such wrong immediately accrues.
The leading case applicable to the case at bar held that: the injury to the plaintiff was complete when the alleged negligence of the defendant caused the plaintiff to inhale the deleterious dust. For that injury, including all resulting damages the defendant was then liable. The disease of the lungs was a consequence of that injury. Its result might be delayed or, perhaps, even by good fortune averted; nevertheless, the disease resulted naturally, if not inevitably, from a condition created in the plaintiff’s body through the defendant’s alleged wrong. It cannot be doubted that the plaintiff might have begun an action against the defendant immediately after he inhaled the dust which caused the disease. No successful challenge could have been interposed on the ground that the action was prematurely brought because, at the time it was commenced, no serious damage to the plaintiff had yet developed. In that action the plaintiff could recover all damages which he could show had resulted or would result therefrom. In effect, the plaintiff is asking this court to hold that the statutory period of limitation begins only from the time that the plaintiff had reasonable assurance that serious damage had resulted or would result from past injury. The statute provides in unambiguous language that the period of limitation begins to run at the moment when right to begin an action accrues. The same test must be applied to a challenge that the action is stale as to a challenge that the action has been brought prematurely.
The Statute of Limitations is a statute of repose. At times, it may bar the assertion of a just claim. Then its application causes hardship. The Legislature has found that such occasional hardship is outweighed by the advantage of outlawing stale claims. The problem created by the slow onset of the disease of pneumoconiosis or silicosis has been considered by the courts of other jurisdictions. They have given to statutes of limitation their intended effect as statutes of repose and have held that a cause of action sounding in negligence accrues at the time when through lack of care by an employer, deleterious substances enter the lungs of an employee though the development of consequential damages may be long delayed.
In view of the above, the court is constrained to dismiss the complaint. The ingestion of a pill is analogous to the injection of a chemical substance or the inhalation of dust as to render this case legally indistinguishable from those cited. The law as it now stands–restated by a majority of our state’s highest court but 20 months ago–mandates that the court decides the case against the weight of profound sympathy; and the apparent injustice that the doctrine brings.
If you have been injured as a result of a negligent act, consult with a lawyer immediately. Do not waste time for you might end up like the above mentioned case where you could lose your right to ask for compensation on the damages or injuries inflicted on you. Contact Stephen Bilkis & Associates for a free legal advice.