On February 7, 2017, the New York Supreme Court, Appellate Division First Department (“Appellate Court”) reinstated a New York medical malpractice case that had been dismissed by the trial court, by applying the continuous treatment doctrine and thereby finding that the plaintiff served her notice of claim on the defendant, New York City Health and Hospitals Corporation (“HHC”), in a timely manner.
The plaintiff was an inpatient at Lincoln Medical and Mental Health Center (“Lincoln Hospital”) between August 26 and September 30, 2005. On September 17, 2005, after suffering complications from treatment of an incarcerated hernia, the plaintiff underwent amputation of her left leg above the knee. The plaintiff alleged in her New York medical malpractice claim against HHC that Lincoln Hospital’s staff had committed medical malpractice by failing to diagnose and treat blood clots that caused her right leg to be amputated above the knee, and that the defendant, HHC, which owns Lincoln Hospital, was responsible for her injuries.
On January 25, 2006, the plaintiff served a notice of claim on defendant HHC. The plaintiff alleged that while her last actual medical treatment at Lincoln Hospital occurred on October 19, 2005, when hospital personnel removed the sutures from her leg, she received a follow-up appointment to return to Lincoln Hospital on October 24, 2005. The plaintiff alleged that when she arrived at Lincoln Hospital for treatment on October 24, 2005, she was informed that the staff could not locate her medical records and that she should return to Lincoln Hospital on October 31, 2005. The plaintiff alleges that when she did, in fact, return to Lincoln Hospital on October 31, 2005 for her appointment, the hospital’s staff informed her that they did not accept her insurance and that she should seek treatment elsewhere.
General Municipal Law § 50-i requires that a notice of claim with regard to a New York medical malpractice claim must be served on the alleged responsible health care provider within one year and ninety days. The plaintiff filed a motion with the trial court for an order deeming her notice of claim timely served on the basis of the continuous treatment doctrine, or, in the alternative, for leave to serve a late notice of claim nunc pro tunc, arguing that her last treatment date was October 31, 2005 and thus, requesting that the trial court grant her application to deem her notice of claim to be timely. The trial court granted the plaintiff’s motion but only “if it is eventually determined that the court had jurisdiction to entertain the application,” and the trial court directed the plaintiff to serve on HHC a copy of the January 25, 2006 notice of claim “in the manner prescribed by law.” On July 25, 2007, the plaintiff served the notice of claim on HHC.
Defendant HHC moved to dismiss the plaintiff’s New York medical malpractice case, arguing that plaintiff’s notice of claim was untimely because the plaintiff was required to serve her notice of claim on the defendant by January 17, 2007. The trial court granted the defendant’s motion to dismiss, finding that the plaintiff’s last date of medical treatment occurred on October 19, 2005, and therefore, the plaintiff was required to file the notice of claim no later than January 17, 2007 (one year and 90 days past the accrual date, the date by which the action had to be filed). Therefore, the trial court found that the notice of claim was untimely, dismissed the plaintiff’s New York medical malpractice case, and the plaintiff appealed.
The Appellate Court held that if the plaintiff was, in fact, considered to be under treatment until October 31, 2005, that treatment would render timely the notice of claim that she served on January 25, 2006, stating that the plaintiff apparently was not examined at the October 24 or October 31 appointments through no fault of her own. The Appellate Court stated that it could reasonably conclude that the doctor-patient relationship continued past October 19, 2005: specifically, the record suggests that the plaintiff and her doctors explicitly anticipated that she would receive further treatment for her leg, thus giving her until one year and 90 days from October 31, 2005 – the last day that the plaintiff returned for an appointment at Lincoln Hospital – to serve a notice of claim.
Source Hill v. New York City Health And Hospitals Corporation
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