The defendant moves this Court seeking an order:

a) Pursuant to CPLR §§3212 and 214-a, granting defendant Thomas Nash, M.D. partial summary judgment as to any and all claims for medical malpractice which occurred prior to

May 21, 2001;

b) Pursuant to EPTL §5-4.1 granting summary judgment on plaintiff's wrongful death claim on the grounds that it was untimely commenced; and

c) For such other and further relief as to this Court deems just and proper.

The plaintiff cross-moves seeking an order striking the defendant's motion for summary judgment, striking the affirmative defense of Statute of Limitations and for such other and further [*2]relief as to this Court seems just and proper.

Now, upon the foregoing papers and upon hearing oral argument on January 11, 2007 and due deliberation had thereon the motion is in all respects Granted and the Complaint is Dismissed as relates to all claims for medical malpractice which occurred prior to May 21, 2001 and the claim for wrongful death. The cross-motion is in all respects Denied.

Dr. Nash, a board certified pulmonologist, saw the patient, Caroline Ciaramello, on only one occasion, December 3, 1999. Thereafter, Dr. Nash communicated with Ms. Ciaramello on two occasions. The final telephone communication took place on June 6, 2000 when Dr. Nash advised Ms. Ciaramello of the results of a recent CT-scan (not performed by him) and his recommendations, which included an open lung biopsy. By letter dated July 7, 2000, Ms. Ciaramello forwarded her prior films to Dr. Nash. This letter was the last contact between Ms. Ciaramello and Dr. Nash until May 24, 2001.

In addition, between July 7, 2000 and May 24, 2001, Ms. Ciaramello was treated for her pulmonary symptoms by two other physicians (an internist and another pulmonologist) and was hospitalized once. Dr. Nash was never advised by Ms.Ciaramello's new pulmonologist, her internist or any other hospital personnel of Ms. Ciaramello's condition, diagnosis or treatment nor did Ms. Ciaramello request that said information be forwarded to Dr. Nash. Nor was Dr. Nash contacted by Ms.Ciaramello during this time frame with respect to her new pulmonary symptoms. In fact, upon discharge from her hospital admission, Ms. Ciaramello returned for follow up to a different pulmonologist, Dr. Michael Castellano. Ms. Ciaramello subsequently returned to see Dr. Nash in May of 2001 only upon the recommendation of Dr. Castellano. There is no evidence to support a treatment relationship between Dr. Nash and Ms. Ciaramello for the time period between July 7, 200 and May 24, 2001.

The plaintiff alleges that Dr. Nash failed to timely diagnose and treat the decedent's lung cancer between November, 1999 and May 25, 1001. However, the evidence clearly establishes that Dr. Nash's last contact with Ms. Ciaramello prior to her resumption of treatment in May of 2001 was on July 7, 2000. After that date, Dr. Nash no longer considered her to be his patient and she in fact sought treatment from another pulmonologist. Therefore, the applicable 2½ year statute of limitations commenced to run on July 2, 2000 and the time to bring a timely medical malpractice action expired on January 7, 2003. However, the instant action was not commenced until November 21, 2003 and is, therefore, untimely.

The doctrine of continuous treatment applies when the time in which to bring a malpractice action is stayed "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint." CPLR §214-a; McDermott v. Torres, 56 NY2d 399, 405; see also, Borgia v. City of New York, 12 NY2d 151. In order to apply the doctrine of continuous treatment there must be actual ongoing treatment of a medical condition. See, Massie v. Crawford, 78 NY2d 516. Neither a continuing physician-patient relationship, nor the continuing nature of a diagnosis or misdiagnosis will suffice. See, Davis v. City of New York, 38 NY2d 257. There must be a course of treatment established with respect to the condition that gives rise to the lawsuit. See, Nykorchuck v. Henriques, 78 NY2d 255. That is missing in the case at bar. Moreover, the Court of Appeals has held that a negligent failure to examine, diagnose and treat a patient's condition over the course of several visits is not continuous treatment. Gordon v. Magun, 83 NY2d 881.

[*3]The Court held that the fact that a condition allegedly overlooked in a previous consultation was the condition ultimately diagnosed in a later consultation does not bring a case within the continuous treatment doctrine, even if a correct diagnosis would have led to an ongoing course of treatment. Gordon v. Magun, supra.

In the case at bar Ms. Ciaramello was not diagnosed with lung cancer until after her return to Dr. Nash on May 24, 2001. It certainly follows that Dr. Nash was not treating Ms. Ciaramello for lung cancer prior to May 24, 2001 and therefore, an ongoing course of treatment was never contemplated. See, Young v. New York City Health and Hospitals Corporation, 91 NY2d 291.

Furthermore, treatment is not "continuous" if the medical services rendered on a particular visit are discrete and complete, and there is no mutual expectation of further treatment. See, Barrella v. Richmond Memorial Hospital, 88 AD2d 379. It has been held that continuous treatment exists only "when further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past." Cox. v. Kingsboro Medical Group, 88 NY2d 904, 906. In the absence of a timely return visit by the patient to complain about and seek further treatment of the same condition for which treatment was originally rendered, subsequent visits should be viewed as intermittent rather than continuous medical services. Grellet v. City of New York, 118 AD2d 141. The existence of substantial gaps between visits or treatments serves to break the continuity that is essential in order to apply the doctrine of continuous treatment. Without this each such medical service may be deemed to be discrete and complete, and the later visit may be viewed as a resumption of treatment rather than a continuation of prior treatment. Grellett v. City of New York, supra; see also, Brocco v. Westchester Radiological Associates, P.C., 175 AD2d 903.

Additionally, the doctrine of continuous treatment does not apply in cases when the treatment is interrupted as a result of the patient seeking care elsewhere. See, Allende v. New York City Health and Hospitals Corporation, 90 NY2d 333; see also, Sposato v DiGiancinto, 274 AD2d 267.

In the present case Ms. Ciaramello did not have an appointment to return to Dr. Nash following her December 3, 1999 visit and her return to his office on May 24, 2001 was not in conformity with their previous contacts. After the December 3, 1999 visit Ms. Ciaramello communicated with Dr. Nash via telephone on two occasions at which time Dr. Nash advised her of test results and his recommendations based on the findings. Even more important is the fact that prior to the May 24, 2001 visit, Ms. Ciaramello sought treatment from Dr. Rocco, Staten Island University Hospital and Dr. Michael Castellano a pulomonologist, all without consulting Dr. Nash. When Ms. Ciaramello did return to Dr. Nash it was only at the suggestion of Dr. Castellano who made the recommendation because Dr. Nash was familiar with Ms. Ciaramello's previous studies. The mere institution of a course of treatment is not the equivalent of continuous treatment. Sposato v. DiGiancinto, supra.

With respect to plaintiff's wrongful death claim the applicable statute of limitations is EPTL §5-4.1 which provides that such an action must be commenced within 2 years of the decedent's death. In addition, the decedent must have had a viable cause of action against the [*4]defendant on the day he died. See, Siegel, New York Practice §44; Marlowe v. E.I. Du-Pont DeNemours and Co., 112 AD2d 769, 771.

In this case, July 7, 2000 was the last contact between Dr. Nash and Ms. Ciaramello before she left his care and chose to be treated by a different pulmonologist and other physicians. The underlying medical malpractice action to have been timely, should have been commenced, therefore, by January 3, 2003. Ms. Ciaramello died on January 13, 2003 after the time to properly commence the action had expired. Therefore, the action commenced on November 21, 2003 by her cousin, the instant plaintiff executor, was untimely and must likewise be Dismissed.

This constitutes the Decision and Order of this Court.

E N T E R,

J.S.C.