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Birth Injury Action May be Barred by Statute of Limitations

On 3 July 1970, an infant was born at the General Hospital. Allegedly, as the result of the defendants’ negligence, the infant suffered permanent neurological injury or brain injury, resulting in mental retardation and cerebral palsy. She was discharged from the General Hospital on 10 July 1970, and the hospital’s discharge record contained a notation to the effect that no further treatment was needed. A New York Injury Lawyer said during the ensuing 20 months, the infant received periodic outpatient medical care, including treatment for an apparent heart murmur, at another Hospital, a private facility, and, during that same period, she was treated on several occasions at the General Hospital emergency room for medical problems that were unrelated to the injuries caused by the alleged malpractice.

On 29 February 1972, the infant was admitted to the private Hospital for evaluation, and she remained there through 13 March 1972. During her stay at the private Hospital, the infant was diagnosed, for the first time, as suffering from psychomotor retardation.

On 17 March 1972, four days after she had been discharged from the private Hospital, the infant was seen as an outpatient at the pediatric clinic of the General Hospital. Significantly, the purpose of this visit, i.e., for treatment of fever, vomiting and diarrhea, was unrelated to the infant’s newly-diagnosed retardation, although the hospital’s record of the visit described the infant as obviously retarded and contained a suggestion that perhaps an ear, nose and throat evaluation should be made in order to assess the 20-month-old infant’s speech difficulties.

Thereafter, and during the ensuing eight-year period culminating with the service of a notice of claim on 8 February 1980, the infant made numerous intermittent visits to the General Hospital for emergency-room treatment for unrelated injuries and illnesses, regular pediatric medical care and examinations and consultations related to her retardation. The intermittent nature of these visits is evidenced by the fact that on 1 May 1973, the infant was brought to the General Hospital because she had exhausted the medication that had been previously prescribed by a hospital physician for treatment of an upper respiratory infection. A Staten Island Personal Injury Lawyer said the infant did not return to the General Hospital until 2 December 1974, approximately 19 months later, when she was seen at the pediatric clinic.

It appears that, as of 1974, the infant was utilizing a private Hospital as the primary provider of treatment related to her neurological problems, and the General Hospital was simply providing intermittent emergency and routine care, as needed, for problems which were, for the most part, unrelated to the injuries allegedly sustained at the time of the infant’s birth. Thereafter, during 1975, she received an electroencephalogram at the General Hospital, the results of which were described as abnormal. This was followed by an examination by the hospital’s developmental evaluation clinic, which assessed the infant to be a severely retarded child functioning at no more than one year of age, and placed her on medication subject to further monitoring. She was subsequently seen by the hospital’s neurology department on 4 June 1975, 8 October 1975, and 20 November 1975, and, on 7 and 8 of December 1975, additional electroencephalograms were administered.

In January 1976, the infant was admitted to the General Hospital as a result of increased seizure activity. Another electroencephalogram was performed on 7 May 1976, and she received another neurological examination on 9 September 1976. On 28 February 1977, the infant’s neurological condition was again reviewed, and her medication was changed. After that date, she was seen at the General Hospital several times between March and June 1977 regarding medical problems unrelated to her retardation and seizures. The infant’s next visit to the General Hospital occurred in November 1978, 17 months later, when she was admitted, through the emergency room, with a diagnosis of seizures and cerebral palsy. The infant was thereafter seen intermittently at the General Hospital during 1979 through 1981 for a variety of ailments, including her neurological disorders.

The General Hospital, at the time of the infant’s birth, was owned by the defendant, City of New York, and operated through the defendant, New York City Health and Hospitals Corporation.

Subsequently, a medical malpractice action ensued.

Plaintiff did not serve a notice of claim until 8 February 1980, and the medical malpractice action was thereafter commenced by service of a summons and complaint on or about 6 August 1982, although plaintiff alleged that the infant’s neurological injuries or birth injuries resulted from negligent care and treatment rendered on the date of the delivery,.

Defendants interposed an affirmative defense that the action had not been timely commenced and was barred by the Statute of Limitations.

Following joinder of issue, defendants moved to dismiss upon the ground that the plaintiff had failed to serve a notice of claim on behalf of the infant within the time prescribed by General Municipal Law.

Plaintiff opposed the motion and cross-moved for an order dismissing the affirmative defense.

Plaintiff contends that the infant received continuous treatment for those neurological disorders at the General Hospital from the date of the infant’s birth at least through 31 December 1979 and, therefore, the service of a notice of claim on her behalf on 8 February 1980, was timely.

In a memorandum decision, Special Term held that the plaintiff’s notice of claim had not been timely served, and that the time in which to apply for leave to serve a late notice had expired, thereby requiring dismissal of the action and rendering academic the issue of the Statute of Limitations defense. A Suffolk County Personal Injury Lawyer said on 24 May 1984, Special Term granted the defendants’ motion to dismiss the action and denied the plaintiff’s cross motion.

The issue here is whether the service of a notice of claim almost 10 years after the date of the alleged malpractice was timely by reason of the tolling provisions for infancy or the continuous treatment doctrine.

It is uncontroverted that the alleged malpractice in this case occurred on 3 July 1970, at or about the time of the infant’s birth. Thus, pursuant to the provisions of General Municipal Law, the plaintiff was required to serve her notice of claim within 90 days of that date. Clearly, the service of the notice by the plaintiff on 8 February 1980, almost 10 years later, was untimely, and the action must therefore be dismissed unless the plaintiff establishes that the time for serving the notice was tolled, either by reason of infancy or by virtue of the continuous treatment doctrine.

Here, the plaintiff may not avail herself of the more liberal provisions of the post-1976 statute. The amendment, which became effective on 1 September 1976 is not applicable to claims which arose more than one year prior to its effective date; such claims have passed beyond the power of judicial recall. Thus, the timeliness of the plaintiff’s service of her notice of claim must be determined on the basis of the prior law, which required that an application for leave to serve a late notice of claim be made within one year after the event from which the claim arose, and which was not tolled by infancy. Measured by this standard, the service of a notice of claim on 8 February 1980 was untimely.

Next, the court must consider her contention that the service was timely by reason of the continuous treatment doctrine, for it is settled that, in a medical malpractice case, the 90-day period for serving a notice of claim, which runs from the date on which the claim arose is tolled by a continuous course of medical treatment relating to the same original condition or complaint. It is the plaintiff’s burden to establish the continuous nature of treatments which take place after the date of the alleged negligence.

The court agrees with Special Term that there is no basis for application of the continuous treatment doctrine. This judicially-created rule, which has now been codified, is premised on the basis that it would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician or hospital superintendent or by filing a notice of claim in the case of a city hospital. The doctrine’s rationale rests, in part, on the further premise that the trust and confidence that marks the physician-patient relationship puts the patient at a disadvantage to question the doctor’s techniques and gives the patient the right to rely upon the doctor’s professional skill without the necessity of interrupting a continuing course of treatment by instituting suit. Consequently, where the relationship between the patient and the provider of treatment has been severed, or where continuing treatment for the same or related illness or injury, after the alleged malpractice, has been terminated, the continuous treatment doctrine loses its efficacy; there is simply no reason for a patient to defer the commencement of legal action to recover damages for the alleged malpractice.

Thus, in order to effectuate the purpose of the continuous treatment doctrine and, at the same time, to prevent a complete abrogation of the Statute of Limitations and the applicable notice of claim requirements, the doctrine is limited in two important respects.

First, continuous treatment may not be based solely on the finding of a continuing physician-patient or, as in this case, hospital-patient relationship; and it is necessary that there be an ongoing course of treatment for the same or related illness or injury continuing after the alleged negligent act or omission. Visits concerning matters that are unrelated to the original condition, including visits for routine examination, do not implicate the continuous treatment doctrine.

Second, the treatment for the illness or injury must, in fact, be ongoing and continuous. The continuous treatment doctrine does not contemplate intermittent treatment where substantial gaps of time exist between consultations. Once the provider of medical services considers the patient’s treatment to have been completed and does not contemplate further examinations or treatments, the Statute of Limitations (and the time for service of a notice of claim) may begin to run, although a complete discharge of the patient will not preclude the application of the doctrine where the patient timely returns to the hospital or physician to complain and seek further treatment of the same condition for which treatment had initially been rendered. In the absence of such a timely return, i.e., soon after the initial treatment, subsequent visits may be viewed as intermittent rather than continuous medical services. The existence of substantial temporal gaps between visits or treatments serve to break the continuity which is essential for the application of the doctrine; each such medical service may be deemed to be discrete and complete, and the latter visit may be viewed as a resumption of treatment rather than a continuation of the prior treatment. Moreover, it is the rule in the Second Department that the continuous treatment doctrine is inapplicable where the interval of time between visits or treatments exceeds the applicable period of limitations.

Clearly, the treatment afforded to the infant at the General Hospital for her neurological injuries and related disorders was plainly intermittent and constituted, for the most part, separate and discrete treatments. The existence of substantial temporal gaps between visits militates against the application of the continuous treatment doctrine. In particular, the infant was released from the General Hospital on 10 July 1970, and no further treatment was contemplated at that time. Although she returned to the General Hospital on several occasions for emergency-room treatment that was completely unrelated to the injuries in question, the hospital did not undertake to render care and treatment related to the infant’s neurological condition until 17 March 1972, at the earliest, more than 20 months after she had been released. Thereafter, the infant did not visit the hospital at all during the 19-month period between May 1973 and December 1974, and during the 17-month period between June 1977 and November 1978. In each instance, these intervals between treatments exceeded the applicable one year and 90-day Statute of Limitations, thereby rendering the continuous treatment doctrine inoperative. Moreover, the remaining visits were, for the most part, sporadic and intermittent. In fact, it appears that during much of the time in question, the infant was receiving treatment for her neurological disorders at other institutions having no nexus with the General Hospital.

Accordingly, the cause of action for medical malpractice arose on 3 July 1970, the date of the commission of the alleged acts of malpractice and, because the period in which to serve a notice of claim was not tolled pursuant to the continuous treatment doctrine, the service of a notice of claim by the plaintiff in 1980 was clearly untimely, and the action was properly dismissed.

The Order of the Supreme Court of Queens County is affirmed.

For a free legal consultation on matters similar to the above, get in touch with Stephen Bilkis & Associates. Discuss your case with our NYC Medical Malpractice Lawyers who are exceptionally skilled and well experienced in the field of medical malpractice suits. For a more specialized lawyer, you may also be referred to one of our NYC Birth Injury Lawyers who have more experiences dealing with birth injury related cases.

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