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Continuous Treatment Doctrine at Issue in New York Cancer Misdiagnosis Case

The statute of limitations for New York medical malpractice lawsuits is currently 30 months. Generally, the time period for filing claims starts to run when the medical error occurred, although this might change if the Governor signs Lavern’s Law. Regardless, New York law recognizes an exception to the general rule. The continuous treatment doctrine extends, or tolls, the statute of limitations when a physician’s treatment has continued uninterrupted and is associated with the patient’s initial illness or condition.

Migraine

A New York appeals court ruled on this issue in Lewis v. Rutkovsky. The plaintiff brought a lawsuit against her primary care physician, alleging that he failed to detect, diagnose, and treat her meningioma. As a result of the alleged malpractice, the plaintiff underwent brain surgery that left her legally blind. The plaintiff first went to see the doctor in 1999 because she was experiencing migraines and blurred vision but did not file a lawsuit until 2010. She argued that this was still proper because her doctor ignored her complaints about her symptoms during the eight-year period of continuous treatment.

The court relied on earlier precedent to guide their decision. In Wilson v. Southampton Urgent Medical Care, P.C., the plaintiff received treatment on 11 separate occasions during a three-year period. The plaintiff’s symptoms included headaches, and she was eventually diagnosed with lung cancer. Deposition testimony revealed that a brain tumor from metastasized lung cancer would cause headaches. The court allowed the claim to proceed because there was an issue of fact as to whether the plaintiff’s continuous treatment for headaches was traceable to the lung cancer.

The court agreed with the reasoning of Wilson. The plaintiff complained of headaches or vision difficulties on at least six different occasions between 1999 and 2007. Therefore, the record contained an issue of fact as to whether the defendants were monitoring the plaintiff for specific symptoms related to the meningioma. In fact, the court reasoned that the facts in this case are more related to the ultimate diagnosis than in Wilson.

One judge issued a dissent in which he argued that the plaintiff’s deposition testimony was contradicted by medical records that stated there was a six-month period in 2007 in which she did not complain of headaches but instead only of back pain and gynecological issues, and the court should grant summary judgment for the defendants. The majority, however, viewed the dissent as further evidence that there was a triable issue between the parties.

If you or a loved one has suffered from a doctor’s cancer misdiagnosis, contact the Rochester-based lawyers at DeFrancisco & Falgiatano Personal Injury Lawyers in New York. Call 315-479-9000 or contact us online. We offer evening and weekend appointments as well as home and hospital visits.

More Blog Posts:

Hospital Denied Emergency Room Exception to Vicarious Liability Rule, Rochester Medical Malpractice and Personal Injury Blog, September 19, 2017

New York Court Allows Anesthesia Error Case to Proceed, Rochester Medical Malpractice and Personal Injury Blog, September 12, 2017

New York Legislature Passes Lavern’s Law, Affecting Cancer Misdiagnosis Statute of Limitations, Rochester Medical Malpractice and Personal Injury Blog, September 5, 2017

Photo Credit: LMun81, [CC0 Creative Commons], via Pixabay

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