Rochester Medical Malpractice and Personal Injury Lawyer Blog
Suffering complications after surgery can be devastating, but waiting too long to pursue a medical malpractice claim may prevent an injured patient from ever obtaining relief. Although ongoing care can sometimes extend New York’s filing deadline, not every follow-up visit, therapy session, or referral qualifies as continuous treatment. As a recent New York opinion demonstrates, courts closely examine who provided the care, whether the providers had a continuing relationship, and whether both parties anticipated additional treatment. If negligent orthopedic treatment caused you lasting harm, you should speak to a Rochester medical malpractice attorney promptly to protect your rights.
History of the Case
Allegedly, the plaintiff underwent right carpal tunnel release and nerve transfer surgery by the defendant physician in December 2020. After limited improvement, the physician performed an additional ulnar nerve procedure in April 2021. The plaintiff continued outside therapy. In September 2021, the physician left the defendant orthopedic practice and later joined another institution.
Reportedly, the plaintiff visited another provider at the orthopedic practice in October 2021 but skipped the recommended follow-ups. Instead, he followed the physician to the new institution for visits in November and December 2021. At the final visit, the physician reviewed studies, discussed intervention for persistent hand problems, and recommended a return within three months. The plaintiff never scheduled another appointment.
It is alleged that the plaintiff continued therapy elsewhere, underwent corrective nerve surgery in May 2022, and returned to the orthopedic practice once in October 2022. On April 16, 2025, he sued the physician and practice over treatment ending in December 2021. The physician moved to dismiss the claims as untimely.
Applying the Continuous Treatment Doctrine
The court explained that a defendant seeking dismissal must first show that the filing period expired. New York generally requires a patient to commence a malpractice action within two years and six months of the challenged act or the last treatment in a continuous course of care. The physician met that burden because the plaintiff sued more than three years after their final visit.
The plaintiff then had to raise a factual question concerning continuous treatment. The doctrine requires ongoing care from the defendant for the same condition, with further treatment anticipated by both parties. Care by other group members may count after a physician leaves if the patient belonged to the practice rather than one provider.
The evidence showed that the plaintiff followed the physician individually. After the physician changed employers, the plaintiff declined follow-up care at the former practice and sought treatment at the new institution. His isolated return to the former practice could not be attributed to the physician, and no continuing agency relationship existed.
The court also found that listing the physician on therapy records did not establish supervision or agency. The recommendation to return within three months failed because the parties scheduled no appointment. Even using the end of therapy or later surgery, the April 2025 complaint remained untimely. The court dismissed the claims against the physician, leaving the practice as the sole defendant.
Discuss Your Case with an Experienced Rochester Medical Malpractice Attorney
Strict filing deadlines can determine whether an injured patient has the opportunity to seek compensation for negligent medical care. If you experienced complications following orthopedic surgery or believe a provider mishandled your continuing treatment, you should talk to an attorney. The experienced the Rochester medical malpractice attorneys at DeFrancisco & Falgiatano Personal Injury Lawyers can assess your case and determine the deadline that may apply. Call 833-200-2000 or contact us through our online form to request a free, confidential consultation.
