Supreme Court, Erie County, July 6, 2022

Ricotta, Mattrey, Callocchia, Markel & Cassert (Colleen Mattrey of counsel) for Robert R. Conti, M.D., defendant.

Lipsitz Green Scime Cambria LLP (Laraine Kelley of counsel) for plaintiffs.

Connors LLP (John T. Loss of counsel) for David R. Dougherty, D.O., defendant.

Defendant Robert R. Conti, M.D., has brought a motion seeking summary judgment based on the affirmative defense of the statute of limitations that plaintiff untimely commenced this action. Plaintiff opposes the motion and asserts that the continuous treatment doctrine exception to the statute of limitations{**77 Misc 3d at 457} applies to this action, making it timely commenced. For the reasons that follow, defendant's motion is denied.

[1] Defendant did plead the affirmative defense in the answer and as such has the burden to establish that plaintiff has commenced this action beyond the 30-month statute of limitations applicable to medical malpractice actions under CPLR 214-a. All parties agree that plaintiff's allegations of negligence against defendant Robert R. Conti, M.D., relate to radiological services provided on May 7, 2015, and that this action was commenced by filing the summons with [*2]complaint on August 1, 2019, more than 30 months after the alleged malpractice. It follows that defendant has met the burden to establish that the action was commenced after the statute of limitations expired. The burden then shifted to plaintiff to establish an exception to the applicable defense.

Plaintiff claims the continuous treatment exception applies to this action. Continuous treatment includes treatment contemplated and undertaken by a medical group or practice if they continuously treated plaintiff for the underlying condition during the time period at issue, precluding them from asserting the statute of limitations defense. (See Dolce v Powalski, 13 AD3d 1200, 1201 [4th Dept 2004].)

In Watkins v Fromm (108 AD2d 233 [2d Dept 1985]) the Appellate Division, Second Department held that a patient who was receiving ongoing monitoring from an entire group of physicians met the requirements of the continuous treatment exception to the statute of limitations. The patient had maintained the relationship to the physician group and the shared understanding that the group would monitor the patient's condition established the continuous treatment. "The doctors who banded together to form a group practice selected the manner in which they would practice medicine. [Plaintiff] did not make that decision and was not privy to their internal arrangement" (Watkins v Fromm, 108 AD2d at 243).

By providing medical care and treatment within a group practice, the physicians created "what amounted to a joint interest in [plaintiff] with respect to the medical treatment for which he came to the group" (Watkins v Fromm, 108 AD2d at 243; see Castano v Lindenhurst Eye Physicians & Surgeons, 220 AD2d 477, 478 [2d Dept 1995]).

[2] Plaintiff has established through his testimony and that of defendants that the group had undertaken to monitor his condition for the recurrence of cancer. Plaintiff testified that{**77 Misc 3d at 458} Dr. Dougherty informed plaintiff that plaintiff's condition would be monitored for the rest of plaintiff's life. Dr. Dougherty then informed plaintiff that monitoring of his condition, care and treatment would be taken over by Drs. Griswold and Halsdorfer. The allegation is that he had a scan on May 7, 2015, that was erroneously interpreted by Dr. Conti as negative for cancer. This is based, in part, upon a subsequent report of a CT scan on February 14, 2019, which compared the films and identified a "neuroendocrine tumor" at the pancreatic neck in the May 2015 scan. (NY St Cts Elec Filing [NYSCEF] Doc No. 58.) The medical testimony, including that by defendant Dr. Griswold, is that renal cancer "is notorious for developing metastasis" and that regular surveillance is recommended. (NYSCEF Doc No. 45.)

There is no dispute that established case law holds that monitoring a patient to observe an abnormal condition qualifies as medical treatment, regardless of whether the condition ultimately diagnosed is a primary tumor or a metastasis of existing cancer. The condition to be diagnosed is cancer and most certainly an accurate reading of a CT scan would not rise or fall on whether it is a metastasis of cancer or a primary tumor. (See Flint v Zielinski, 130 AD3d 1460, 1462 [4th Dept 2015], rearg and lv denied 132 AD3d 1330 [4th Dept 2015].)

Dr. Conti asserts that the nature of his employment with defendant Buffalo Medical Group (BMG) is sufficient to eliminate any relationship with plaintiff and sever the application of continuous treatment. Dr. Conti avers that his status is that of an independent contractor and the statute of limitations for any alleged malpractice that may have happened on May 7, 2015, elapsed no later than November 7, 2017. Perhaps if Dr. Conti had provided his services through another entity separately identified and outside of BMG such that he could not reasonably be [*3]considered to be part of a joint enterprise then his analysis would be on more solid foundation supported by case law. However, Dr. Conti was providing his services within the auspices of BMG in concert with Dr. Dougherty, Dr. Griswold, and Dr. Halsdorfer, among others. The technical nature of one physician's relationship to the other physicians is not what controls whether a course of treatment for the underlying condition that gives rise to the claim is based.

Addressing the issue of Dr. Conti submitting an affirmation instead of an affidavit, such error was cured by the submission of the affidavit sworn to on June 29, 2022 (NYSCEF Doc No.{**77 Misc 3d at 459} 62; see Stradtman v Cavaretta, 179 AD3d 1468 [4th Dept 2020]).

The testimony in this case, when viewed in the light most favorable to plaintiff, as it must be, is that both plaintiff and his physician group believed his condition that gives rise to this lawsuit was being monitored by physicians working at BMG.

In this action, plaintiff continued to treat with BMG, and Dr. Dougherty referred plaintiff to Dr. Griswold and Dr. Halsdorfer for follow up as set forth in plaintiff's medical chart. (E.g. NYSCEF Doc Nos. 53, 54.) In the light most favorable to plaintiff, this is sufficient to raise a question of fact whether defendants were engaged in a joint enterprise to monitor plaintiff's condition for future developments. Plaintiff continued to treat as directed and was ultimately diagnosed with a cancerous tumor by a subsequent scan interpreted by Dr. Conti in February 2019. Applying the applicable case law to the circumstances presented, in viewing the evidence in the light most favorable to plaintiff, plaintiff has raised a question of material fact whether the statute of limitations has been tolled by the continuous treatment doctrine.

The Appellate Division, Fourth Department has previously ruled on facts similar to those in this action:

"While the failure to establish a course of treatment cannot be deemed a course of treatment (see Nykorchuck v Henriques, 78 NY2d 255, 259 [1991]), it is well settled that '[t]he monitoring of an abnormality to ascertain the presence or onset of a disease or condition may constitute treatment for purposes of tolling' the statute of limitations (Oksman v City of New York, 271 AD2d 213, 215 [2000]; see Reiter v Sartori, 2 AD3d 1412, 1413 [2003]; see also Cherise v Braff, 50 AD3d 724, 726 [2008]; Dolce v Powalski, 13 AD3d 1200, 1201 [2004]). That includes the monitoring of patients who are at high risk for developing cancer for the onset of the disease (see e.g. Sosnoff v Jackman, 45 AD3d 568, 569-570 [2007], lv dismissed 10 NY3d 885 [2008]; Melup v Morrissey, 3 AD3d 391, 391 [2004]). Indeed, the CT scan at issue was ordered as part of defendant's 'continuing efforts . . . to treat a particular condition,' i.e., to monitor the potential appearance of cancer in decedent's chest area (Massie v Crawford, 78 NY2d 516, 519 [1991], rearg denied 79{**77 Misc 3d at 460} NY2d 978 [1992])." (Flint v Zielinski, 130 AD3d at 1462.)

The motion for summary judgment on behalf of defendant Robert R. Conti, M.D., seeking to dismiss plaintiffs Anthony D'Auria and Lynn D'Auria's complaint is denied, without costs.