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1
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OPINION
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EXTRACTED KEY WORDS
DEFENDANT TREATMENT DECEDENT MEMORANDUM SUMMARY JUDGMENT DISMISSING ACTION SOUNDING MEDICAL MALPRACTICE LIVER EXAMINATION CANCER DIAGNOSE CONTINUOUS TREATMENT DOCTRINE NY2D JUDGE YORK COSTS PARTIAL SUMMARY JUDGMENT PERSONAL INJURY PHYSICIAN PURPOSE DRUG TREATMENTS PSORIASIS PLAINTIFF STATUTE LIMITATIONS FIRST CONSULTATION ONGOING MCDERMOTT TORRE |
ROBERT I. GORDON, &C. v. ARTHUR MAGUN,
83 N.Y.2d 881, 634 N.E.2d 974, 612 N.Y.S.2d 373 (1994).
May 3, 1994
1 No. 144 SSM 9 (1994 NY Int. 073)
Decided May 3, 1994
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs,
defendant's cross-motion for partial summary judgment dismissing the
personal injury causes of action sounding in medical malpractice
granted and the certified question answered in the negative.
In January and February of 1987, defendant physician examined
plaintiff's decedent at the request of decedent's dermatologist. The
purpose of the consultations was to determine whether decedent's liver
would be harmed by continuing drug treatments for psoriasis. Though
defendant detected a nodule during the examination and testing, he
concluded that the proposed drug treatment would have no ill effects
on decedent's liver. No further examinations or follow-up
consultations with defendant were proposed or contemplated. Decedent
was treated for psoriasis and released from the hospital. Nine months
later, in November 1987, decedent consulted her internist after
complaining of abdominal swelling. The internist referred her to
defendant, who detected cancer. Decedent died of liver cancer a short
time later.
More than two years after the November examination, plaintiff
commenced this action alleging, among other things, that defendant
negligently failed to diagnose the cancer during the initial
consultations in January and February. To avoid dismissal of the
medical malpractice claims under the 2 1/2-year Statute of Limitations
(CPLR 214-a), plaintiff contends that decedent's visits to defendant
constituted a single course of treatment, thereby invoking the
continuous treatment doctrine to toll the Statute of Limitations.
We conclude that the continuous treatment doctrine is inapplicable
under these circumstances. The consultations here were not part of
"continuing efforts by a doctor to treat a particular condition"
(Massie v Crawford, 78 NY 516, 519). The first consultation was
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