Plaintiff Vincent Santore (hereinafter "plaintiff") brought this action to recover monetary damages for injuries he allegedly suffered as a result of defendants' failure to correctly diagnosis and treat him for appendiceal carcinoid cancer with metastasis to the liver. Betty Ann Santore has pleaded a derivative cause of action, e.g., for loss of consortium. In the complaint, plaintiff alleges that from July 1994 through approximately August 2003, defendants failed to order proper tests; correctly and timely diagnose and treat his disease; and initiate appropriate consultations and render proper advice. As a result, it is claimed that (1) plaintiff was caused to suffer increased levels of pain; (2) defendants' ability to treat the disease was reduced; and (3) plaintiff's life expectancy was diminished.

More particularly, plaintiff contends that Dr. David Wolf deviated from good and accepted medical practice when he, inter alia, failed to order appropriate tests; failed to refer plaintiff for proper consultations; and rendered improper treatment. Plaintiff further contends that defendants Manhattan Diagnostic Radiology (hereinafter "MDR") and Dr. L. Daniel Neistadt departed from good and accepted medical practice by failing to compare plaintiff's 1998 and 2001 CT scans; fully inform plaintiff about the lesions on his liver; and adequately treat plaintiff's symptoms. Lastly, plaintiff maintains that Dr. Robert Cooper failed to follow good and accepted medical practice by neglecting, inter alia, to order more extensive tests and diagnostic procedures relative to his liver lesions, including blood tests, urine tests, Octreo-Scans and biopsies.

Defendants move separately for summary judgment dismissing the complaint as against each of them.

Statute of Limitations

Initially, Drs. Wolf and Cooper contend that several of plaintiff's causes of action should be dismissed because the facts to which they relate occurred more than two and one-half years [*2]before this action was commenced. In support, they cite CPLR 214-a, which provides a two year and six month statute of limitations for medical malpractice actions. However, the statute in question also supplies a "toll" for injuries sustained in a course of "continuous treatment for the same illness, injury or condition which gave rise to the . . . act, omission or failure" of which the health care provider stands accused, and it is on this provision that plaintiff relies in opposing dismissal.

The principle underlying the doctrine of continuous treatment is premised on the belief that a patient should not be required to disrupt corrective treatment and/or undermine the physician-patient relationship simply to guarantee the timeliness of his or her medical malpractice action (see Prinz-Schwartz v Levitan, 17 AD3d 175, 177 [1st Dept 2005]). In this regard, while it is well settled that "routine diagnostic examinations, even when conducted repeatedly over a period of time, do not constitute a course of treatment" (Mandel v Herrmann, 271 AD2d 661, 662 [2d Dept 2000]), "diagnostic examinations which are specifically prescribed as part of ongoing care for an existing medical condition may be sufficient to invoke the continuous treatment toll" (id.; emphasis added).

In this case, Dr. Wolf contends that any cause of action based upon the care that he rendered to plaintiff prior to 2001 is untimely, as such events took place more than two years and six months before this action was commenced. Moreover, he claims that this care did not address the same conditions that underlie the alleged malpractice. Plaintiff initially sought treatment from Dr. Wolf for various symptoms in 1994, but the specifics of those symptoms are disputed by the parties. Plaintiff's subsequent visits (through 2001) and the reasons for such visits are also in dispute.

In view of the above, it is the opinion of this Court that there are triable issues of fact regarding the alleged "continuous treatment" rendered by Dr. Wolf, e.g., whether said doctor has continuously treated plaintiff during the relevant time frame for the same condition or complaint that prompted the initial visit, and whether the acts or omissions which are alleged to constitute the malpractice were a part of that treatment (see Prinz-Schwartz v Levitan, 17 AD3d at 177). In particular, it cannot be determined on these papers how, if at all, plaintiff's multiple visits to Dr. Wolf in 1994 and 1998 are related to the alleged failure to timely diagnose and treat his appendiceal carcinoid cancer, and whether the frequency and intensity of the doctor's monitoring of any medically significant symptoms rose to the level of continuous treatment.

Somewhat similar, but to different effect, is Dr. Cooper's claim that any causes of action based on the treatment he rendered to plaintiff prior to November 13, 2001 must be dismissed as untimely. Here, it is undisputed that plaintiff began treatment with Dr. Cooper on or about August 16, 1994 for gastrointestinal issues, and that he was treated continuously for these complaints through 1998. At this point, however, a gap in treatment occurred, and it is agreed that plaintiff did not consult with Dr. Cooper again until November 13, 2001, nearly three years later. Moreover, when plaintiff resumed visits to Dr. Cooper in November 2001, it is undisputed that the health issues sought to be addressed at that time were those associated with the lesions on his liver. On these facts, the undisputed gap in plaintiff's treatment by Dr. Cooper between 1998 and 2001 is sufficient to deny him the benefit of the statutory toll. Accordingly, any causes of action against Dr. Cooper pertaining to the treatment he rendered to plaintiff prior to November 13, 2001 is time-barred, and all such causes of action must be severed and dismissed.

Summary Judgment [*3]

Clearly, summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard " the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

In medical malpractice actions, it is well established that plaintiff has the ultimate burden of establishing that the actions of the defendant health care provider(s) constituted a deviation or departure from accepted practice, and that such actions were a proximate cause of his or her injuries (Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359 [2d Dept 1998]). In the context of summary judgment, it is equally well settled that "[g]eneral allegations of medical malpractice, merely conclusory in nature and unsupported by competent evidence" are insufficient to rebut a prima facie showing of non-negligence by the moving defendant (Kramer v Rosenthal, 224 AD2d 392, 392 [2d Dept 1996]).

Here, each defendant has made a prima facie showing of its entitlement to judgment as a matter of law based on the affirmations of their respective experts, each of whom opined that the care provided by these defendants was within good and accepted medical practice. In particular, the expert affirmations of Drs. Ahmed and Rothman state that each defendant ordered the proper tests, referrals and evaluations in light of plaintiff's symptoms and complaints. Further, these experts opined that defendants individually committed no act or omission that constituted a substantial contributing factor to plaintiff's injuries.

In opposition, plaintiff has submitted the redacted affidavit of a physician licensed to practice in the State of Pennsylvania ^[FN1], who opined, inter alia, that the injuries to plaintiff were the result of numerous departures from accepted medical practice on the part of each defendant. Moreover, plaintiff's expert averred the acts and/or omissions of each defendant led to the failure of each to timely diagnose and correctly treat plaintiff's disease, and was a proximate cause of his injuries. [*4]

It is well settled that a conflict of opinion among experts, as here, raises issues of credibility that may not be resolved on a motion for summary judgment (see e.g. Rappaport v Sears Roebuck & Co., 28 AD3d 449 [2d Dept 2006]).

Punitive Damages

In a medical malpractice action, "[p]unitive damages are recoverable [only] where the conduct in question evidences a high degree of moral culpability, or the conduct is so flagrant as to transcend mere carelessness, or the conduct constitutes willful or wanton negligence or recklessness" (Morton v Brookhaven Mem. Hosp., 32 AD3d 381, 381 [2d Dept 2006]; internal quotation marks omitted). Moreover, in a factually similar case, Brooking v Polito (16 AD3d 898 [3d Dept 2005]), the Appellate Division held that a plaintiff's demand for punitive damages based on defendant's alleged failure to timely diagnose and treat his metastic pancreatic cancer was not sustainable where the facts revealed that defendants had subjected plaintiff to multiple diagnostic tests, including CAT scans, blood tests, MRIs and ultrasounds, and in an apparent attempt to treat his illness. As the court therein observed

"[w]hile the misconduct alleged against the defendants is indeed significant, it is undisputed that . . . [e]ven viewing plaintiff's allegations as true, none of [their failures] amounted to a conscious disregard of the right of others such that a wrongful motive . . . willful or intentional misdoing, or a reckless indifference could be discerned" (id. at 899; citations and internal quotation marks omitted).

Likewise, each of the defendants at bar individually prescribed or performed comparable testing on this plaintiff in an attempt to diagnose and treat his illness. Although the sufficiency of their efforts has been questioned, there are, as in Brooking, no facts suggestive of any wrongful motive, willful or intentional misdoing, or reckless indifference. Thus, plaintiff's claim for punitive damages must be dismissed.

Accordingly it is,

ORDERED, that the motions for summary judgment of defendants David Wolf, M.D., Manhattan Diagnostic Radiology and L. Daniel Neistadt, M.D., (Motions Nos. 2964 and 3044) are granted to the extent of dismissing any claim or cause of action for punitive damages; and it is further

ORDERED, that the balance of their motions are denied; and it is further

ORDERED, that the motion for summary judgment of defendant Robert Cooper, M.D. (Motion No. 3041) is granted to the extent of dismissing any cause(s) of action against him predicted on the treatment he rendered to plaintiff Vincent Santore prior to November 13, 2001, as well as any claim or cause of action for punitive damages; and it is further

ORDERED that the balance of his motion is denied; and it is further

ORDERED, that the Clerk enter judgment severing the dismissed causes of action.

Dated:February 14, 2007

E N T E R,

/s/Hon. Philip G. Minardo [*5]

J.S.C.