O'Donnell v. Siegel

In November 1993, plaintiffs decedent, then 23 years of age, first presented to defendant, board-certified gastroenterologist Dr. Howard Siegel, with complaints of bloody stool, nausea, constipation and diarrhea. Dr. Siegel diagnosed the decedent as having esophageal-gastric reflux and hemorrhoids, prescribed hemorrhoidal cream and advised the decedent to increase his fiber and slow down when eating. The decedent was told to come back should his symptoms persist and no follow-up appointment was scheduled. On August 30, 1995, the decedent again visited Dr. Siegel, complaining of nausea and symptoms associated with acid reflux. An upper-GI endoscopy performed on the decedent revealed inflammation of the gastroesophageal junction, antral gastritis and no hiatal hernia, and an abdominal ultrasound and various other lab tests came back normal. The decedent was again prescribed hemorrhoidal and antireflux medication and told to come back if the symptoms persisted. On a visit on April 29, 1997, the decedent complained of similar symptoms, and was again given prescriptions for the hemorrhoids and reflux and advised to come back if the symptoms persisted. On January 16, 1998, after presenting with mild rectal bleeding and symptoms associated with irritable bowel, Dr. Siegel scheduled the decedent for a colonoscopy, which, after being performed on January 23, 1998, revealed bleeding hemorrhoids, irritable bowel syndrome and possible colitis. Testing on blood and urine samples, however, indicated normal results. The decedent was prescribed over-the-counter medication and advised to return if the rectal bleeding returned. No appointment was scheduled.

On February 20, 2003, five years later, the decedent returned for his last visit, complaining again of rectal bleeding and symptoms associated with irritable bowel syndrome. Dr. Siegel again prescribed over-the-counter medicine and recommended a change in diet to a “healthy and high fiber” one. Also, he told the decedent to come back if the rectal bleeding persisted. In July 2003, the decedent was diagnosed with colon cancer. This action, alleging, inter alia, failure to diagnose and treat colon cancer, was commenced in June 2005.^*

The motion court should have dismissed, as time-barred, all claims relating to care and treatment rendered by defendants from November 1993 to, and including, January 23, 1998. The statute of limitations for medical malpractice is 21k years from the act, omission or failure complained of, or the “last treatment where there is continuous treatment for the same illness ... or condition” (CPLR 214-a). Sufficient facts having been shown that, calculated from the commencement of the action in June 2005, all but the final office visit on February 20, 2003 occurred outside the applicable 2x/2-year statute of limitations period, plaintiff failed to raise a triable issue of fact as to whether the course of treatment, if such existed, had run continuously from November 1993 through February 20, 2003 so as to toll the running of the applicable statute of limitations (see McDermott v Torre, 56 NY2d 399 [1982]; Borgia v City of New York, 12 NY2d 151 [1962]).

The decedent’s visits from 1993 through 2003 for similar complaints regarding the same area of the body, although arguably indicia of a “continuing general relationship with a physician, or routine, periodic health examinations [, do] not satisfy the doctrine’s requirement of continuous treatment of the condition upon which the allegations of medical malpractice are predicated” (Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998] [internal quotation marks and citation omitted; emphasis added]). On this record, we find that during a nine-year period, Dr. Siegel, on five separate occasions, treated the decedent as he appeared. Dr. Siegel never discussed a “course of treatment” with the decedent other than prescribing mostly over-the-counter medication and advising the decedent to change his diet to include more fiber. Nor was there any evidence that “further treatment [was] 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” (Richardson v Orentreich, 64 NY2d 896, 898-899 [1985]). Even if the colonoscopy, performed in 1998, constituted a course of treatment, it was negative and the parties did not contemplate further treatment, as evidenced by the lack of instruction by Dr. Siegel that the decedent come back for a follow-up, plaintiffs opposition papers stating that the decedent “had no reason to think he should return to the doctor sooner than he did,” and the decedent’s deposition testimony that after the 1998 visit and procedure, there had been a resolution of the symptoms until the final visit in 2003.

Even in situations where further treatment is not contemplated, “[i]ncluded within the scope of ‘continuous treatment’ is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment” (McDermott, 56 NY2d at 406). However, within this context, the decedent’s return after a five-year period, during which time no treatment was rendered by Dr. Siegel, cannot be considered timely (cf. Sinclair v Cohan, 240 AD2d 152, 154 [1997] [a 28-month “chasm” between visits]). Nor do the policy reasons underlying the continuous treatment doctrine—that a patient should not be required to interrupt corrective medical treatment by a physician and undermine the continuing trust in the physician-patient relationship in order to ensure the timeliness of a medical malpractice action (Rizk v Cohen, 73 NY2d 98, 104 [1989]; see also Young, 91 NY2d at 296)—justify the invocation of the doctrine. Accordingly, we conclude that the decedent’s return five years later was “a renewal, rather than a continuation, of the physician-patient relationship” (Rizk, 73 NY2d at 105; see also Aulita v Chang, 44 AD3d 1206, 1210 [2007]), and therefore, the continuous treatment doctrine may not be invoked by plaintiff (McDermott, 56 NY2d at 405; Young, 91 NY2d at 297). Concur—Tom, J.P., Williams, Malone and Kavanagh, JJ.

* After oral argument on the appeal, this Court was notified that the decedent had died and the cause of death was colon cancer. This decision follows the substitution order naming Lisa O’Donnell, the decedent’s wife and the administrator of his estate, as plaintiff.