Published on:

Statute of limitations for serving notice of claim not tolled under the continuous treatment doctrine- Grellet v. City of New York, 504 N.Y.S.2d 671, (N.Y. App. Div., 1986)


In this case the court determines the issue as to whether the statute of limitations for filing a medical malpractice claim was tolled based on the continuous treatment doctrine. Under New York law, there are special procedural rules that must be followed in order to sue a public entity. Because the defendant Elmhurst General Hospital was owned by the City of New York and operated by New York City Health and Hospital Corporation at the time of the incident at the basis of this lawsuit, the plaintiff was required to follow the special procedures.

Before an injured victim can file a lawsuit against a public entity, the plaintiff must first file a notice of clam with the appropriate public office within 90 days of the date of the negligent act that resulted in the plaintiff’s injury. In this case, the malpractice occurred at the time of plaintiff’s baby’s birth, July 3, 1970. According to the plaintiff, the defendant’s negligent care during labor and delivery of the baby resulted in neurological damage. As a result, the baby has mental retardation and cerebral palsy.

The plaintiff served notice on February 8, 1980—over 10 years after the negligence and over 10 years after the deadline for serving a notice of claim. Thus, the court had no choice but to dismiss the plaintiff’s claim, unless the time for serving notice was tolled. “Tolling” the statute of limitations means pausing or delaying the running of the statute of limitations. In other words, the plaintiff in a personal injury lawsuit would have extra time to file his or her claim. In New York, two possible reasons for tolling the statute of limitations in a medical malpractice case are due to infancy or due to continuous treatment. After determining that the time for serving notice could not be tolled based on infancy, the plaintiff argues that her filing was not late under the “continuous treatment” rule. The doctrine provides that in a medical malpractice case, the 90-day filing period for serving a claim is tolled if there is a continuous course of treatment for the condition caused by the alleged medical malpractice.

For the treatment to be “continuous,” there must be regular treatment or care for the same condition between the patient and the doctor. The treatment cannot be terminated. An act that can terminate treatment is if the patient seeks treatment for the injury from a doctor other than the doctor who committed the malpractice. Thus, when the patient stops treatment, the statute of limitations begins. The doctrine is designed to protect patients. The plaintiff has the burden of establishing that the treatments were continuous.

Plaintiff’s baby medical records indicate that the baby was seen by doctors, admitted to the hospital, and was treated by emergency room staff intermittently from birth until the plaintiff filed the notice of claim. While some of the visits were related to the baby’s diagnosis of psychomotor retardation, many of them were for unrelated medical conditions. In addition, the plaintiff sought treatment for the baby’s neurological problems primarily at Roosevelt Hospital and not at the defendant hospital.

Based on the records of the baby’s treatment for her neurological problems, the court concluded that treatment at defendant hospital was only intermittent and that there were significant gaps in treatment. Thus, there was no basis to apply the continuous treatment doctrine in order to toll the statute of limitations for filing a claim.

This case highlights the importance of understanding procedural law related to filing a medical malpractice lawsuit or any other type of personal injury claim. Even if a plaintiff’s claim has merit, if the plaintiff does not understand the procedural rules and fails to adhere to filing deadlines and other requirements, the court may dismiss the case and the plaintiff may be barred from ever seeking redress or winning a judgement.

Contact Information