Poag v Atkins

[*1] Poag v Atkins 2005 NY Slip Op 51445(U) [9 Misc 3d 1107(A)] Decided on September 12, 2005 Supreme Court, New York County Carey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 12, 2005
Supreme Court, New York County

LINDA LOU POAG, as Executrix of the Estate of CAROL J. RUBICK, a/k/a CAROL JEAN RUBICK, deceased, Plaintiff,

against

VERONICA ATKINS, as executrix of the Estate of ROBERT C. ATKINS, M.D., deceased ROBERT C. ATKINS, M.D., P.C., ATKINS CENTER FOR COMPLEMENTARY MEDICINE, FRED PESCATORE, M.D., and LAWRENCE KEMPF, M.D., Defendants.



111539/02



Ellenberg & Rigby, LLP, New York (James Gandy of counsel), for defendants Veronica Atkins, as Executrix of the Estate of Robert Atkins, M.D., Robert Atkins, M.D., P.C., the Atkins Center for Complementary Medicine, and Fred Pescatore, M.D.

Bauman & Kunkis, P.C., New York (Stephanie L. Gold of counsel), for the plaintiff.

Joan B. Carey, J.

IntroductionMotion by defendants Veronica Atkins, as Executrix of the Estate of Robert Atkins, M.D., Robert Atkins, M.D., P.C., the Atkins Center for Complementary Medicine, and Fred Pescatore, M.D., for summary judgment dismissing the complaint insofar as asserted against them.

Facts & Procedural Posture

In August 1995, the plaintiff's decedent, Carol Rubick, underwent a lumpectomy. The procedure was performed to remove an irregular mass that was detected in her right breast one month earlier. Pathological studies performed on the mass revealed that the mass was malignant.

Shortly after the procedure was performed the plaintiff and her decedent met with the surgeon who performed the procedure. The purpose of this post-operative meeting was to ascertain what additional treatment, if any, was available to the plaintiff's decedent. According to the plaintiff, the surgeon unequivocally [*2]stated that the plaintiff's decedent needed to undergo chemotherapy and radiation, informing the plaintiff's decedent that alternative treatments were not advisable. A consulting oncologist agreed with this proposed course of treatment.

Notwithstanding the surgeon's recommendation to pursue conventional treatment (i.e chemotherapy and radiation), the plaintiff's decedent decided to pursue alternative methods. To that end, the plaintiff's decedent made an appointment with defendant Atkins Center for Complementary Medicine ("the Center"), a medical practice operated by defendant Dr. Robert Atkins.[FN1] The plaintiff's decedent decided to make the appointment after hearing Dr. Atkins on a radio program discussing the benefits of his alternative cancer treatment. On September 11 and 12, 1995, the plaintiff's decedent made her initial visits to the Center, submitting paperwork, providing her medical history, and undergoing a physical examination. On September 27, 1995, the plaintiff's decedent, accompanied by the plaintiff, returned to the Center to meet with Dr. Atkins. The plaintiff recalled Dr. Atkins telling the plaintiff's decedent that chemotherapy and radiation would kill-off healthy cells of the plaintiff's decedent, thereby prohibiting her immune system from fighting the cancer. Dr. Atkins recommended a regimen of vitamins and antioxidants, known as the Ukraine Protocol ("the Protocol"), to bolster the immune system of the plaintiff's decedent.[FN2] Dr. Atkins did not, according to the plaintiff, inform the decedent that the Protocol was experimental or considered unsafe by certain medical groups. The plaintiff also recalled Dr. Atkins telling the plaintiff's decedent that the alternative treatment the Center offered could "definitely cure" the decedent's cancer condition. The plaintiff's decedent elected to pursue the alternative treatment offered by the Center.

On October 17, 1995, the plaintiff's decedent returned to the Center, where she discussed her treatment plan (i.e. use of the Protocol in lieu of chemotherapy and radiation) with defendant Fred Pescatore, M.D., a staff physician at the Center. Dr. Pescatore did not view the Protocol to be a substitute for chemotherapy and radiation in treating the type of cancer that inflicted the plaintiff's decedent. Rather, Dr. Pescatore believed that the Protocol should be used in conjunction with conventional cancer treatment. Thus, Dr. Pescatore recommended [*3]to the plaintiff's decedent that she undergo chemotherapy and radiation, as previously recommended by the decedent's surgeon.[FN3] The following day the plaintiff's decedent returned to the Center for her first treatment. Prior to undergoing her initial administration of the Protocol, the plaintiff's decedent signed a consent form, which read in pertinent part:

Atkins Center Consent Form

You have come to my office requesting treatment from the ATKINS CENTER. The specific form of treatment you will receive, as noted below, may be considered experimental by many doctors. The usage of this treatment may have been disapproved by medical groups on the grounds that such treatment has not been shown to be safe or effective or usual, customary and reasonable. It is important for you to realize this because we must have your informed consent in order to proceed with the treatment.

* * * * *

The choice of whether or not to enter this treatment is yours. Should you decide to discontinue the treatment after you have started it, you have the right to cease at any time and choose other treatment elsewhere.

Although we do believe that this treatment will be of benefit to you, and that it has helped others, you must understand that we cannot and we do not warrant or guarantee the results in any manner. I cannot offer this procedure to you except upon the condition that you release my office and myself and any treating persons from any legal responsibility for harm resulting from its use in your case.

Your signature on this agreement will constitute a full and final release of any legal responsibility resulting from the administration of this treatment as therapy in your case and/or any other medical treatment that may be necessary as a result thereof.

* * * * *

I have read the description of the therapy as outlined herein or I have had it translated into a language I understand. I understand that my taking this treatment is voluntary, and I [*4]understand there are other forms of treatment I could have chosen.

The plaintiff's decedent periodically visited the Center for treatments of the Protocol, abstaining from chemotherapy and radiation, from October 17, 1995 through October 31, 2000. The plaintiff's decedent stopped seeking treatment at the Center after a new malignant mass was detected in her right breast. This cancerous mass metastasized to the plaintiff's decedent's spine, and ultimately she passed away on January 18, 2003.

Prior to her death, the plaintiff's decedent commenced this action against the defendants to recover damages for medical malpractice, alleging, among other things, that the defendants departed from good and accepted medical practice by encouraging her to forgo chemotherapy and radiation. Following the death of her decedent, the plaintiff was substituted as the proper plaintiff to this action.

The Center, Mrs. Atkins and Dr. Pescatore seek summary judgment dismissing the complaint insofar as asserted against them on the grounds that the plaintiff's decedent exculpated the defendants from liability, and that the plaintiff's decedent expressly assumed the risks of receiving medical treatment at the Center. Alternatively, they seek summary judgment dismissing the complaint insofar as it is asserted against Dr. Pescatore, arguing that the claims against this defendant are time barred. The plaintiff opposes each branch of the motion.

Analysis

I. Purported Exculpatory Agreement

The argument of the moving defendants that the plaintiff's decedent exculpated the defendants from liability is without merit.

While exculpatory agreements will generally be enforced where they are given in the context of a purely commercial transaction, or where voluntary nonessential social activities are engaged in by consenting parties, judicial imprimatur of agreements that purport to release individuals or entities from liability for the rendition of medical treatment is typically withheld (see Ash v New York Univ. Dental Ctr., 164 AD2d 366 [1st Dept. 1990]; see also Rosenthal v Bologna, 211 AD2d 436 [1st Dept. 1995]; Creed v United Hosp., 190 AD2d 489 [2d Dept. 1993]). The exculpatory agreement at issue here, which purports to excuse the defendants from any liability stemming from the use of the Protocol, offends public policy (see Ash v New York Univ. Dental Ctr., supra; see also Rosenthal v Bologna, supra; Creed v United Hosp., supra). Additionally, the "agreement" consists of several sentences in the middle of the informed consent form signed by the plaintiff's decedent; no separate heading or caption was present to alert the decedent that she was foregoing the right to [*5]bring suit (see Schneider v Revici, 817 F2d 987 [2d Cir 1987]). Thus, the "agreement" is unenforceable.

II. Assumption of Risk

There are two species of assumption of risk, one that serves to preclude recovery by a plaintiff, and one that subjects a plaintiff's claim to the principles of comparative negligence housed in CPLR 1411 (see e.g. Arbegast v Bd. of Ed. of South New Berlin Cent. School, 65 NY2d 161 [1985]). Express assumption of risk, which precludes recovery by a plaintiff, involves an agreement between the parties in advance that the defendant need not use reasonable care for the benefit of the plaintiff and would not be liable for the consequences of conduct that would otherwise be negligent (id). Implied assumption of risk is not based upon an express contract, but upon the plaintiff voluntarily encountering the risk of harm from the defendant's conduct with full understanding of the possible harm to herself (id).

In the case at bar, the moving defendants assert that the plaintiff's action is barred because her decedent, by signing the consent form, expressly assumed the risks of the medical treatment she received at the Center. However, the moving defendants failed to make a prima facie showing of entitlement to judgment as a matter of law on this ground. Rather, the evidence submitted by the moving defendants demonstrates the existence of a material issue of fact in this regard. Specifically, the contents of the consent form and the deposition testimony of the plaintiff and Dr. Pescatore evince that a triable issue of fact exists concerning which specific risks, if any, the plaintiff's decedent was advised of by the defendants prior to receiving treatment at the Center (see Gilkeson v Five Mile Point Speedway, 232 AD2d 960 [3d Dept. 1996]; Long v State of New York, 158 AD2d 778 [3d Dept. 1990]; see also Boyle v Revici, 961 F2d 1060 [2d Cir 1992]; Schneider v Revici, supra; 1A PJI3d 2:55A, at 342 [2005]).[FN4]

III. Statute of Limitations [*6]

Generally, an action to recover damages for medical malpractice must be commenced within two years and six months of the accrual of the claim (i.e. act, omission or failure complained of)(CPLR 214-a). However, the "continuous treatment doctrine" stays the statute of limitations until the course of treatment related to the original medical complaint or condition is concluded (see e.g. CPLR 214-a; Young v New York City Health & Hosp. Corp., 91 NY2d 291 [1998]; Allende v New York City Health & Hosps. Corp., 90 NY2d 333 [1997]; see also Siegel, New York Practice § 42, at 56-57 [4th ed.]).

The moving defendants have made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint insofar as it is asserted against Dr. Pescatore, establishing that the claims asserted against this defendant are time barred. In this regard, Dr. Pescatore last provided medical care to the plaintiff's decedent on July 3, 1998. This action was commenced on May 31, 2002, long after the two-year and six-month statute of limitations with respect to this defendant had expired.

In an effort to avoid dismissal of the action insofar as it pertains to Dr. Pescatore, the plaintiff asserts that the continuous treatment doctrine tolled the statute of limitations against Dr. Pescatore. The plaintiff relies on Watkins v Fromm (108 AD2d 233 [1985]), in which the Second Department held that:

the continuous treatment doctrine is applicable to toll the Statute of Limitations for a malpractice action against physicians alleged to have committed malpractice who have terminated their relationship with a group medical practice if it be established that the plaintiff was considered to be a patient of the group and was treated by the group, as such, and remained under the care of physicians in the group for the same injury, illness or condition after the departure from that practice of the physicians who were primarily, if not solely, responsible for the alleged wrongful acts and omissions. Stated somewhat differently, we conclude that the subsequent treatment by the remaining members of the medical group may be imputed to the departed physicians for Statute of Limitations purposes, provided it is established that the patient was treated as a group patient and the subsequent treatment was for the original condition and/or complications resulting from the original condition.

(id at 234).[FN5] [*7]

Should the rule propounded in Watkins be followed by the court, the statute of limitations against Dr. Pescatore must be tolled. Dr. Pescatore last provided medical treatment to the plaintiff's decedent on July 3, 1998, and the Doctor left the employ of the Center on or before April 15, 1999. Dr. Pescatore had neither contact with the plaintiff's decedent nor a relationship or affiliation with the Center following the conclusion of his employment at the Center. However, physicians and staff at the Center continued to treat the plaintiff's decedent for her original conditions (i.e. cancer, weakened immune system) through October 31, 2000. Since the continuous treatment doctrine tolled the statute of limitations until the cessation of treatment, the action, which was commenced on May 31, 2002, was timely against Dr. Atkins and the Center, and, by the imputation principle of Watkins, Dr. Pescatore.

However, the Court of Appeals has stated that "[w]here the continuing treatment is provided by someone other than the allegedly negligent practitioner, there must be an agency or other relevant relationship between the health care providers [to support the imputation of liability]" (Allende v New York City Health & Hosps. Corp., supra at 339 [internal quotation marks deleted]; see Meath v Mishrick, 68 NY2d 992 [1986]). Thus, where the plaintiff seeks to impute a subsequent treating physician's continued treatment to a prior treating physician, a continuing relevant relationship between the healthcare providers must be established (see e.g. Urow v Orentreich Med. Group, 10 AD3d 552 [1st Dept. 2004]; Conway v Nassau Co. Med. Ctr., 298 AD2d 423 [2d Dept. 2002]; Traphagen v Robert Packer Hosp., 270 AD2d 777 [3d Dept. 2000]; Walsh v Faxton-Children's Hosp., 192 AD2d 1106 [4th Dept. 1993]; Janisch v Howland, 163 AD2d 821 [4th Dept. 1990]; see also Traverso v. Reed, 234 AD2d 731 [3d Dept. 1996]).

Urow v Orentreich Med. Group (supra) is controlling in the court's inquiry concerning the viability of the Watkins rule. In Urow, the plaintiffs commenced an action, among other things, to recover damages for medical malpractice against a medical group and a former physician thereof, alleging that the defendants negligently removed scar tissue from the injured plaintiff's nose. The Supreme Court granted the motion of the estate of the former physician of the medical group, which was for dismissal of the medical malpractice claims asserted against it. In affirming the order, the First Department noted that the former physician last treated the injured plaintiff more than two years and six [*8]months before the action was commenced, and determined that the plaintiffs had failed to raise a triable issue of fact with respect to the applicability of the continuous treatment doctrine. The Court stated that:

It does not avail plaintiff[s] in his action against [the former physician] that [the injured plaintiff] was treated at the [medical group] as late as November of 1993, i.e., within the statutory period. Although [the former physician] had been professionally affiliated with the [medical] group, he was no longer so affiliated when the treatment at [the medical group] within the statutory period occurred. Moreover, it is well settled that when continuing treatment is provided by someone other than the purportedly negligent practitioner, there must be an agency or other relevant relationship between the health care providers to support the imputation of liability (see Allende v. New York City Health & Hosps. Corp., 90 NY2d [at] 339). A mere past affiliation is insufficient to create such agency or other relevant relationship (id).

(Urow v Orentreich Med. Group, supra at 552-553).

In light of the requirement that a continuing relevant relationship must exist between healthcare providers before the continuous treatment of a subsequent treating physician may be imputed to a prior treating physician, the court declines to follow Watkins. Accordingly, the claims asserted by the plaintiff against Dr. Pescatore are time barred (see Urow v Orentreich Med. Group, supra).

Conclusion

Based upon the foregoing, it is hereby

ORDERED that the branch of the motion which is for summary judgment dismissing the complaint insofar as asserted against Fred Pescatore, M.D., is granted, the complaint is dismissed insofar as it is asserted against Fred Pescatore, M.D., and the action against the remaining defendants is severed; and it is further,

ORDERED that the clerk of the court is directed to enter judgment in favor of Fred Pescatore, M.D., dismissing the complaint insofar as asserted against him; and it is further,

ORDERED that the remaining branches of the motion are denied.

Date 09/12/2005

Hon. Joan B. Carey Footnotes

Footnote 1:Following Dr. Atkins's death, his wife, Veronica Atkins, was substituted in his place as a proper party to this action.

Footnote 2:The Protocol was to be used in conjunction with colonic and oxygen treatments.

Footnote 3:Dr. Pescatore believed that the purpose of the Protocol was to support the plaintiff's decedent's immune system, not to prevent the recurrence or spread of cancer.

Footnote 4:A triable issue of fact also exists with respect to whether the plaintiff impliedly assumed the risks of receiving treatment at the Center (see e.g. Gray v Gonzalez, 290 Ad2d 292 [1st Dept. 2002]; Charell v Gonzalez, 251 AD2d 72 [1st Dept. 1998]; see generally 1A PJI3d 2:55, at 327-328 [2005]; 1A PJI3d 2:55A, at 343 [2005]). Should evidence be adduced at trial sufficient to warrant a charge on both forms of assumption of risk, the trier of fact will be instructed in accordance with PJI 2:55A, which requires the jury to first pass on the issue of express assumption of risk, and consider the issue of implied assumption of risk only if no express assumption is found.

Footnote 5:Apparently, the Second Department continues to adhere to the Watkins rule (see e.g. Cardenales v Queens-Long Is. Med. Group, P.C., 18 AD3d 689 [2d Dept. 2005]; Solomonik v Elahi, 282 AD2d 734 [2d Dept. 2001]; Pierre-Louis v Hwa, 182 AD2d 55 [2d Dept. 1992]; see also Brown v St. Barnabas Hosp. for Chronic Diseases, 159 AD2d 674 [2d Dept. 1990]; McKinney v Bay Ridge Med. Group, 126 AD2d 711 [2d Dept. 1987]; Sciscio v Yadav, 124 AD2d 652 [2d Dept. 1986]; Ryan v Kountz, 114 AD2d 358 [2d Dept. 1985]).