Cooper v. Kaplan

Order of the Supreme Court, New York County (Helen E. Freedman, J.), entered on or about April 12, 1989, which granted defendant’s motion for summary judgment dismissing the complaint, affirmed, without costs.

In this medical malpractice action, plaintiff seeks to avoid the 2 Vi-year Statute of Limitations period (CPLR 214-a) by invoking the doctrine of continuous treatment. (See, Borgia v City of New York, 12 NY2d 151 [1962].) The doctrine of continuous treatment, however, is inapplicable to toll the Statute of Limitations in this case.

Defendant, a physician, prescribed Ortho-Novum 135 birth control pills for plaintiff in or around May 1985. The only other contact alleged was two telephone calls in August of that year. Plaintiff discontinued her use of the pills on or about October 14, 1985, after discovering a blood clot in her lung. Plaintiff contends that the clot was caused by her use of the medication prescribed by defendant. Plaintiff, however, made no attempt to commence this action, by filing a summons with notice with the New York County Clerk, until on or about April 13,1988.

The continuous treatment doctrine was intended to avoid the harsh consequences of the Statute of Limitations in situations where a patient, in order to meet the limitations period, would be required to "interrupt corrective efforts by serving a summons”. (Borgia v City of New York, supra, at 156.) The doctrine of continuous treatment was not intended to cover a "mere continuity of a general physician-patient relationship” (supra, at 157) and should not be applied to the facts of this case, where plaintiff was aware of the injury and of the possible link between the injury and the use of the pills within the limitations period, and the only reason offered for extending the period of limitations is an outstanding prescription for the drug, with no evidence of an appointment for future treatment. (Cf., Parrott v Rand, 126 AD2d 621, lv denied 69 NY2d 611; Richardson v Orentreich, 97 AD2d 9 [1st Dept 1983], affd 64 NY2d 896.) Concur—Murphy, P. J., Sullivan and Rubin, JJ.