SEAN GANESS & C, APPELLANT v. CITY OF NEW YORK ET AL., RESPONDENT
85 N.Y.2d 733, 651 N.E.2d 1261, 628 N.Y.S.2d 242 (1995).
June 7, 1995
2 No. 150 (1995 NY Int. 129)
Decided June 7, 1995
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Gilbert Spencer, for Appellant
Elaine R. Rothenberg, for Respondents
PER CURIAM:
Plaintiff was born on August 6, 1973 at Elmhurst General Hospital,
Queens County with a medical condition known as Erb's palsy, which
affects his left shoulder and arm. Beginning shortly after his birth,
plaintiff visited doctors at the Hospital's Pediatric Neuromuscular
Rehabilitation Clinic where his condition was monitored and his
parents received instruction in a therapeutic program of home
exercises.
At a meeting with his parents when plaintiff was three-and- one-half
years old, the doctors at Elmhurst explained that plaintiff's injuries
were likely to be permanent. At that meeting, plaintiff's mother
discussed with the doctors whether plaintiff's delivery by C-section
might have prevented the condition.
On May 18, 1984, nearly 11 years after his birth, plaintiff filed a
notice of claim against defendants alleging negligence by the medical
personnel involved in his 1973 delivery.
Since a notice of claim in any medical malpractice action against
defendants must be filed within 90 days after the claim arises (GML
50-e; Unconsolidated Laws § 7401(2)), and plaintiff indisputably
failed to file such a notice until nearly 11 years after the alleged
negligence, the only question before the Court is whether plaintiff
can invoke the continuous treatment doctrine to excuse his delay (see
Daniel J. v New York City Health and Hosps. Corp., 77 NY2d 630,
633).
Under the continuous treatment doctrine, the time in which a
plaintiff must bring an action alleging malpractice is stayed "when
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
Gilbert Spencer, for Appellant
Plaintiff was born on August 6, 1973 at Elmhurst General Hospital, Queens County with a
plaintiff visited doctors at the Hospital's Pediatric Neuromuscular Rehabilitation Clinic
On May 18, 1984, nearly 11 years after his birth, plaintiff filed a notice of claim against
Since a notice of claim in any medical malpractice action against defendants must be filed
Under the continuous treatment doctrine, the time in which a plaintiff must bring an action
As this Court has stated: "he policy underlying the continuous treatment doctrine seeks to
Nor is there any claim that the infancy toll provisions of CPLR 208 read in accordance with
I write separately only to emphasize my own serious questions as to whether the most
This Court has repeatedly held that where the continuing treatment is provided by someone
Further, we have explicitly rejected the notion that the practitioners' common affiliation
The "continuous treatment" on which plaintiff's claim for a statutory toll is predicated,
The only remaining reason for applying the continuous-treatment rule to these facts would be
Finally, permitting use of the continuous-treatment toll where the injured patient has been
outcome is a weighty question that requires considerably more thought and analysis.
I would hope that, notwithstanding this inexplicable choice by these litigants, the Court's
|
