Walsh v. Faxton-Children's Hospital

—Order unanimously reversed on the law without costs, motions granted and complaint dismissed. Memorandum: We reject plaintiff’s contention that the continuous treatment doctrine tolled the Statute of Limitations in this medical malpractice action. We conclude that plaintiff’s malpractice claim against defendant Laurance C. Lee, M.D., accrued on December 24, 1986 when June Walsh was discharged from defendant The Faxton-Children’s Hospital (Hospital) (see generally, Nykorchuck v Henriques, 78 NY2d 255, 258). Because plaintiff commenced this action against Dr. Lee more than 2 VS years after its accrual, Supreme Court erred in denying Dr. Lee’s motion for an order dismissing the complaint as time-barred. Although the Hospital may have been vicariously liable for Dr. Lee’s negligence during Ms. Walsh’s hospitalization commencing in September 1986 (see, Hill v St. Clare’s Hosp., 67 NY2d 72, 79; Mduba v Benedictine Hosp., 52 AD2d 450, 453), the existence of such a relationship may not serve as a basis for applying the continuous treatment doctrine to toll the Statute of Limitations (see, Ruane v Niagara Falls Mem. Med. Ctr., 60 NY2d 908, 909). In the absence of a continuing relevant relationship between Dr. Lee and the Hospital after Ms. Walsh’s discharge, the continuous treatment doctrine does not apply to toll the Statute of Limitations (see, McDermott v Torre, 56 NY2d 399, 403; Janisch v Howland, 163 AD2d 821, lv denied 76 NY2d 713).

Finally, inasmuch as plaintiffs claim against the Hospital is predicated on its alleged vicarious liability for Dr. Lee’s treatment during the September through December 1986 admission, that claim also accrued, at the latest, upon Ms. Walsh’s discharge, rendering commencement of this action on September 20, 1989 against the Hospital untimely. (Appeal from Order of Supreme Court, Oneida County, Shaheen, J. — Summary Judgment.) Present — Callahan, J. P., Green, Fallon, Boomer and Boehm, JJ.