Perez v Mra

[*1] Perez v Mra 2006 NY Slip Op 50362(U) [11 Misc 3d 1062(A)] Decided on January 10, 2006 Supreme Court, Bronx County Salerno, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 10, 2006
Supreme Court, Bronx County

Mildred Perez, Plaintiff,

against

Zan Mra, M.D. MRA, M.D. P.C., and MONTEFIORE MEDICAL CENTER, Defendants.



27278/02

George D. Salerno, J.

Defendants Dr. Zan Mra and Montefiore Medical Center by separate motions move to dismiss plaintiff's complaint. With respect to Montefiore this defendant's motion to dismiss is grounded on the contention that plaintiff's separate causes of action for malpractice, lack of informed consent and negligent hiring of Dr. Mra are barred by the applicable statute of limitations. [FN1] Defendant Mra's motion also seeks to dismiss plaintiff's claims contending that the causes premised on medical malpractice and lack of informed consent are time barred. [FN2]

BACKGROUND

It is undisputed that plaintiff presented to defendant Montefiore on

February 4, 1999 with complaints of difficulty sleeping and a throat infection [FN3] The admitting note was signed by Dr. Appel (a non-party to this proceeding) and plaintiff was referred by Dr. Appel to the defendant, Dr. Mra. It is undisputed that after certain tests were performed by Dr. Mra, he performed a surgical procedure on February 9, 1999 which is described in Montefiore's hospital record as uvulopalatopharngoplasty (UPPP) and nasal septoplasty and "out-fracture of the inferior turbinates. [FN4] Plaintiff was discharged from Montefiore on February 14, 1999. Two post operative visits occurred on February 18, 1999 and March 18, 1999 and on each occasion [*2]plaintiff met with Dr. Mra. [FN5] All post-operative visits with Dr. Mra took place at Montefiore. According to plaintiff, she complained to Dr. Mra after her surgery of blood, pus, excessive phlegm and choking on her food but was told by Dr. Mra that these symptoms would eventually subside.

When plaintiff's symptoms became more acute, which plaintiff describes as a constant nose drip with excruciating headaches, nausea and dizziness, she sought medical help at Jacobi Hospital over a weekend in March 2000. Plaintiff was seen at that time by a resident who told plaintiff that her "brain was leaking." [FN6]

It turned out that the leaking fluid from plaintiff's nose was cerebral spinal fluid, (CFS). Plaintiff was thereafter admitted to Montefiore on March 23, 2000 where she underwent several procedures including a cisternogram to identify, then localize the site of the cerebralspinal fluid leak (CFS) and to reduce the volume of cerebral spinal fluid, Dr. Lasala performed a lumbar puncture. Plaintiff was discharged from Montefiore Hospital on March 30, 2000. Plaintiff was later readmitted to Montefiore on April 26, 2000 where Dr. Marvin Fried performed an Endoscopic repair of the left cerebrospinal and remained at the hospital through May 8 or May 9, 2000. [FN7]

STATUTE OF LIMITATIONS

CPLR§ 203 (subd [a] states in relevant part, that "[the] time within which an action must be commenced.....shall be computed from the time the cause of action accrued to the time the claim is interposed." Therefore, the two important dates which must be identified to resolve a disputed issue regarding whether the Statute of Limitations bars the action commenced by the plaintiff are when the cause of action accrued which generally commences when the injury occurred and the date when a party interposed his or her claim measures the timeliness of a party's claim. Normally, a cause of action for malpractice accrues on the date or act or omission (Davis v. City of New York 38 NY2d 257, 259, 342 NE2d 516, 379 NYS2d 721; Nykorchhuck v. Henriques 78 NY2d 255; 577 NE2d 1026, 573 NYS2d 434).

Both defendants argue that plaintiff's claims whether measured, by the 2 ½ year limitation imposed by CPLR 214-a which governs the time frame for the commencement of malpractice actions and actions for lack of informed consent are time barred. With respect to plaintiff's claim for negligent hiring Montefiore asserts that this claim is barred since it was not commenced within 3 years after plaintiff's cause of action accrued. Defendants point to plaintiff's last treatment rendered by Dr. Mra which occurred on March 18, 1999 thus requiring plaintiff to commence her action for malpractice and lack of informed consent on or before September 18, 2001. Montefiore also argues that plaintiff's cause of action for negligent hiring is barred since plaintiff's action was commenced on October 15, 2002 more than 3 years after this claim accrued.

CONTINUOUS TREATMENT DOCTRINE

Ordinarily malpractice actions must be brought or commenced within "two years and six [*3]months of the act, omission or failure complained of" (CPLR§214-(a).

However, the continuous treatment doctrine extends the time to commence a malpractice action for the period when the cause of treatment has run continuously and is related to the same original condition or complaint (see Borgia v. City of New York 12 NY2d 155, 155, 187 NE2d 777, 237 NYS2d 319). Included within the scope of continuous treatment is a timely return visit to seek treatment for a medical condition related to the initial treatment ( see McDermott v.Torre 56 NY2d 399, 406, 437 NE2d 1108, 452 NYS2d 351 [1982] ).

Whether the continuous treatment doctrine is applicable requires the court in the first instance to determine when plaintiff's cause of action accrued. Without such a finding, it would indeed be fruitless to ascertain whether plaintiff can maintain a malpractice claim where the treating physician to whom plaintiff's claim is addressed continued to treat plaintiff for the same condition. The application of this doctrine was traced by the Court of Appeals in Borgia v. City of New York, supra to decisions in other jurisdictions where the time limitation to bring an action for malpractice did not start until treatment ended (see Borgia, supra , at page 156 citing; Schanil v. Branton, 181 Minn 381, 382; De Haan v. Winter, 258 Mich. 293, 296-297; Williams v. Elias, 140 Neb. 656, 660; Peteler v. Robinson, 81 Utah 535, 546; Sly v. Van Lengen, 120 Misc. 420). The Borgia Court, supra , rejected the City's argument that the period for bringing an action begins when the malpractice ends.

In the case at bar, plaintiff's treatment by Dr. Mra continued through March 18, 1999. No dispute is raised by defendants that plaintiff's post operative visits occurred at Montefiore and her entire treatment including the surgical procedures by Dr. Mra and Dr. Fried were all performed by the same medical group at Montefiore. Plaintiff's affidavit specifically identified her post operative complaints that were made to Dr. Mra and, according to the plaintiff, it was Dr. Mra who convinced plaintiff that her complaints, of blood, pus, excessive phlegm including her generalized complaint that she was choking on her food when she ate, would eventually go away. [FN8] No other post operative explanations were given by Dr. Mra.

Plaintiff's affidavit identifies a further episode in March 2000 as a constant nose drip with "excruciating headache, nausea and dizziness" which caused her to seek further medical treatment. These complaints which became more acute over a week-end caused plaintiff to see a resident physician at Jacobi Hospital who told plaintiff that her "brain was leaking." Plaintiff then sought to return to Montefiore for further treatment by Dr. Mra and when she was unable to see Dr. Mra, plaintiff was referred to Dr. Marvin Fried who is also an otolaryngolgist at Montefiore. The consent form signed by plaintiff identified the procedure which Dr. Fried would perform as Endoscopic sinus surgery to repair cerebrospinal fluid leak originating from the left cubraform plate. Plaintiff was readmitted to Montefiore from March 23, 2000 through March 30, 2000. Plaintiff was readmitted again to Montefiore after the CFS leak continued and with symptoms indicating spinal meningitis. Plaintiff was discharged on May 9, 2000. Correlation of the procedures performed by Dr. Mra and later by Dr. Fried at Montefiore are spelled out in a detailed affidavit submitted by plaintiff's expert, a board certified Otolaryngologist in opposition to defendants' motion.

Here, plaintiff's expert states: "The patient's return to Montefiore Medical Center in [*4]March 2000, within two days of having the first experience of nose leaking fluid, accompanied by severe headache upon which she was diagnosed as having a CFS leak and was admitted for a cisternogarm to attempt to alleviate her problem, can only be considered a continuation of the care and treatment that was undertaken by the hospital in February 1999." This opinion which causally connects plaintiff's CFS leak with the treatment undertaken by the hospital together with Dr. Mra's assurance to the plaintiff that her post operative complaints would alleviate with the passage of time provides a basis for the court to find that plaintiff's treatment by Dr. Fried was related to plaintiff's original condition.

DISCUSSION

Defendants first argue that plaintiff's return to Montefiore in March, April and May 2000 did not constitute continuous treatment. In support of their argument defendants raise a series of contentions to support of argument which conveniently fail to acknowledge the continuing relationship established between plaintiff and Montefiore. Plaintiff was treated at Montefiore first by Dr. Mra who, on the record presented, did not render his medical service to the plaintiff as an attending physician. All the medical services occurred at Montefiore. When Dr. Mra last saw the plaintiff, he did not refer plaintiff to another physician and although defendant's counsel argues that Dr. Mra did not anticipate that plaintiff would require further treatment, plaintiff did raise concerns about her post operative condition to Dr. Mra, which Dr. Mra indicated would resolve with the passage of time.

In Barrella v. Richmond Mem. Hosp. 88 AD2d 379, 384 453 NYS2d 444, the court considered whether the continuous treatment doctrine should apply when the interval between treatments exceeds the period of limitation to commence an action concluded "the existence of temporal gaps between treatments is a factor to be considered in determining continuity and no existing rule defines with any precision what amount of time shorter than the period of limitation may intervene without a break in continuity." Also, prior to Barrella, supra the First Department in Gnoj v. City of New York 29 A.D.404, 288 NYS2d 368 [1968] ruled that the question whether treatment is continuous is primarily a factual issue to be resolved by the jury.

Defendants' argument that when plaintiff presented with symptoms which caused her readmission to Montefiore can "only be characterized as a resumption of treatment" [FN9] and therefore plaintiff's claim of continuous treatment cannot be established as a matter of law on the record now before this court. Manifestly, defendants' reliance on this argument is grounded on the lapse of time between plaintiff's last post operative appointment with Dr. Mra at Montefiore and the presence of certain symptoms which became acute and caused her to return to Montefiore Hospital. Here, defendants discount the affirmation presented by plaintiff's expert who casually connects the CSF leak to the surgery performed by Dr. MRA in 1999.

Defendants' next argument is grounded on the assertion that plaintiff's subsequent treatment commencing in March 2000 can not be "imputed" to Montefiore leading defendants to conclude that the court may not apply the continuous doctrine thereby requiring dismissal of plaintiff's complaint. Defendants cite a plethora of cases which require proof of an agency relationship or other relevant relationship between the physician or physicians charged with malpractice and the subsequent treating physician or a relationship between the physicians and [*5]the hospital where the malpractice occurred. Plaintiff connects her subsequent treatment by Dr. Fried which also took place at Montefiore to the malpractice of Dr. Mra. This contention is adequately supported by affirmation of plaintiff's otolarynglogist who faults Dr. Mra surgical treatment as the cause of plaintiff's CSF leak. [FN10]

The Court of Appeals in Ruane v. Niagara Falls, 60 NY2d 908, 458 NE2d 1253, 470 NYS2d 576 dismissed a plaintiff's complaint where the court found that although the doctor "happened to be affiliated with the hospital but not employed by the hospital." However, the term affiliated was not otherwise described. The court's holding in Ruane, supra , was followed by the Court of Appeals in Meath v. Meshrick, 68 NY2d 992, 503 NE2d 115, 510 NYS2d 560. The courts have generally refused, for example, to impose liability upon a medical facility such as a hospital where the hospital did nothing more than assign the anesthesiologist to provide anesthesiological services for the surgery. In the case at bar, plaintiff does refer this court to Dr. Mra's deposition testimony where he classifies the medical services he provided to plaintiff as a faculty practice.

Other cases have made similar findings rejecting the ostensible agency concept (see Colon v. City of New York 287 AD2d 591, 731 NYS2d 881. Di Filippi v. Huntington Hospital 203 AD2d 321, 610 NYS2d 552). In McDermott v. Torre 56 NY2d 399, 437 NE2d 1108, 452 NYS2d 351 the court determined whether the continuing treatment by a physician can be imputed to an independent laboratory. The court found that the laboratory was an independent contractor with no continuing relationship to plaintiff or any agency relationship with the dermatologist. See Plummer v. NYCHHC, 98 NY2d 263 [2002], 774 NE2d 712, 746 NYS2d 647, where Judge Smith writing on behalf of a unanimous court, reversed the lower court because the course of the infant's treatment " was not truly continuous" and thereby never reached "the question of whether continuous treatment by an institution is a cognizable theory."

Approximately seven years before Plummer, supra , reached the Court of Appeals, Judge Tutone in a concurring opinion in Garness v. City of New York 85 NY2d 733, 737-738 reviewed prior case law which "repeatedly held that where the continuing treatment is provided by someone other than the practitioner alleged to have been negligent, there must be an agency or other relevant relationship' between the two", citing Meath v. Mishrick, 68 NY2d 992, 994, quoting McDermott v. Torre, supra at 403; and Florio v. Cook 48 NY2d 792, affd. 65 AD2d 548). Judge Tutone while casting doubt on whether the facts presented the court in Garness was sufficient to establish a relevant relationship under case law, he nevertheless presented the theoretical problems attendant to applying the continuous treatment doctrine to two. clinics under the same umbrella hospital. (cf Pierre - Louis Ching - Yuan Hwa 182 AD2d [2nd Dept 1992]; Turcios v. Nassau County Medical Center 173 Misc 2d, 646, 661 NYS2d 491).

More important, however, Judge Tutone's concurring opinion in Garness raised the issue whether the fundamental requirement of an unbroken course of treatment by a closely affiliated group of practitioners was satisfied. Part of his concern is clearly identified by his observation that a hospital is an impersonal entity that is not capable of forming the intimate one-on-one physician relationship which is inopposite to the relationship undertaken by Montefiore when Montefiore provided the ENT specialist who would initially treat plaintiff and later attempts to [*6]remedy the alleged malpractice committed by Dr. Mra.

The decision of the Appellate Division in Watkins v. From 108 AD2d 233, 488 NYS2d 768, is informative because of the issue presented as to whether it is proper to toll the statute of limitations in a malpractice action commenced by a patient treated by several members of a group, all trained in the same medical specialty, who ended their relationship with the medical group. The medical group members were either neurologists or neurosurgeons. The court looked at plaintiff's relationships with the group doctors and held that plaintiff was a patient of the entire group which permitted the court to toll the period that plaintiff was treated by various members of the group and a physician's affiliation with a hospital premised on his relationship with the hospital's "faculty practice" has been held to be relevant to the issue of continuous treatment as to the hospital. (Ugovitch v. Mt. Sinai Medical Center 245 AD2d 53, 665 NYS2d 412.

In the case at bar, plaintiff returned to the medical service described as a faculty practice at Montefiore before the statute of limitations expired. Plaintiff undeniably returned to Montefiore in March 2000 and was treated by Dr. Fried who was assigned to the plaintiff because of the unavailability of Dr. Mra. Montefiore provided the physical location for plaintiff's treatment, provided the physicians and the nursing staff all of whom were engaged by Montefiore to treat plaintiff from the first day of her admission which ended on May 9, 2000. Montefiore held itself "out as offering medical services to the public through any of the physicians practicing in it." (See Hill v. St. Clairs Hospital 67 NY2d 72, at page 81.

The Court of Appeals in Hill, supra , decided to hold a medical clinic vicariously liable for the malpractice of a treating physician even though the medical facility neither participated or controlled the treatment prescribed. Citing the principle adopted in Hannon v. Siegel - Cooper Co., 167 N.Y. 244, the court firmly stated "The principle of the Hannon case.....has been applied to hold a hospital or clinic responsible to a patient who sought medical care at the hospital or clinic rather than from any particular physician, although the physician whose malpractice caused injury to the patient who was not an employee of the hospital or clinic......" (Case citations omitted).

Consequently, resolution of the issues presented in the case at bar are dependent on the relationship of each physician who treated the plaintiff in the context of their nexus to the medical facility. Montefiore held itself out as the provider of medical services to the plaintiff. The separate motions presented by the defendants represents an effort to separate their roles and responsibility for the claims brought by the plaintiff. As a general rule, a hospital is not vicariously liable for the malpractice of a private attending physician who is not its employee. An exception to this rule exists where patient enters the hospital through the emergency room or by direct contact with the hospital facility seeking treatment from the hospital and not from a physician of the patient's choosing. (See Padilla v. Bucalo 266 AD2d 524, 698 NYS2d 911). Here the record regarding the precise relationship of both Dr. Mra and Dr. Fried to Montefiore is unclear except that plaintiff refers this court to Dr. Mra's testimony at his examination before trial where he stated that his office at Montefiore is a " faculty practice." Whether a physician is an employee or an attending physician is an ultimate fact to be determined from the evidence (Nobel v. Ambrosio 120 AD2d 715, 716, 502 NYS2d 511) and "where treatment is provided by more than one physician or health care provider, the continuing treatment by one will be imputed to the other in the presence of an agency relationship, or some other relevant association which continues the nexus between the two providers." (Ganapolskaya v. VIP Med. Assocs. 221 AD2d [*7]59, 644 NYS2d 735; see also McDermott v. Torre, supra ); Here, plaintiff returned to Montefiore seeking assistance from Dr. Mra, the alleged wrongdoer, whose treatment was the cause according to plaintiff's expert of plaintiff's CFS leak. Manifestly, plaintiff was unaware of the cause of her condition that was treated by another otolaryngologist, Dr. Fried also at Montefiore Hospital.

SUMMARY JUDGMENT STANDARD

The role of the court is to determine of bona fide issues of fact exist, and not to resolve issues of credibility. As the court stated in Knepka v. Tallman, 278 AD2d 811, 811 718 NYS2d 541 (4th Dept. 2000):

"Supreme court erred in resolving issues of credibility in

granting defendants' motion for summary judgment dismissing

the complaint (see, Mickelson v. Babcock, 190 AD2d 1037

[1038, (4th Dept. 1993)]; see generally, Black v. Chittenden, 69

NY2d 665, 660 [1986]; Capelin Assoc. V. Globe Mfg. Corp.,

34 NY2d 338, 341 [1974] ). Any inconsistencies between the

deposition testimony of plaintiffs and their affidavit submitted

in opposition to the motion present credibility issues for trial

(see, Schoen v. Rochester Gas & Elec., 242 AD2d 928 [928,

(4th Dept. 1997)]); Mickelson v. Babcock, supra )."

See also, Glick & Dolleck v. Tri-Pac Export Corp., 22 NY2d 439, 441, 239

NE2d 725, 293 N.Y.S2d 93 (1968); Yaziciyan V. Blancato, 267 AD2d

152, 152, 700 NYS2d 22 (1st Dept. 1999); Perez v. Bronx Park South

Associates, 285 AD2d 402, 404, 728 NYS2d 33 (1st Dept. 2001); Singh

v. Kolcaj Realty Corp., 283 AD2d 350, 351, 725 NYS2d 37 (1st Dept.

2001).

The court's function in determining a motion for summary judgment is issue finding than issue determination. See Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 144 NE2d 387, 165 NYS2d 498 (1957). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231, 385 NE2d 1068, 413 N.Y.S. 2f 141 (1978). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. See Stone v. Goodson, 8 NY2d 8, 12, 167 NE2d 328, 200 NYS2d 627 (1960); Sillman v. Twentieth Century-Fox Film Corp., supra .

CONCLUSION

Issues of fact exist such as the relationship between Dr. Mar, Dr. Fried and Montefiore which militates against granting defendant's motion for summary judgment. In addition, plaintiff's expert, a board certified otolaryngologist, sets forth the relationship between Dr. Mra surgery and the CFS leak which required plaintiff to return to Montefiore and establish that plaintiff's return to Montefiore was for the same condition and her subsequent admission constituted contentions treatment:

"It is my opinion, with reasonable medical certainty, that

The CFS leak was the direct result of the surgery that was [*8]

performed in February, 1999. Specifically, it is my opinion that

the only explanation for the CFS leak was an overly energetic

manipulation of the perpendicular plate of the ethnoid bone

with excessive rocking or lateral movement, which caused a

crack in the cribiform plate [which resulted in the CFS leak].

It is my opinion, that with reasonable medical certainty

that this excessive rocking or lateral movement during the

deviated septum surgery was a departure from accepted

standards of care for otolaryngologists during 1999... The

patient's return to Montefiore Medical Center in March, 2000,

within two days of having the first experience of the nose

leaking fluid, accompanied by severe headache, upon which she

was diagnosed as having a CSF leak and was admitted for a

cisternogram to attempt to alleviate her problem, can only be

considered a continuation of the care and treatment that was

undertaken by the hospital in February, 1999. The patient was

again admitted to Montefiore Medical Center on April 26,

2000, with diagnoses including the CSF leak, which persisted,

and meningitis. On April 26, 2000, an endoscopic repair of the

CSF leak was performed, obviously for treatment of the CSF

leak. In my opinion, these procedures, at Montefiore, were

directly related to the February, 1999, surgery as well, and must

also be considered a continuation of the care and treatment that

was undertaken by the hospital in February, 1999."

Finally, in Shifrina v. City of New York, 5 AD3d 660, 774 N.Y.S.

2d 85 (2nd Dept. 20004), the court held that the affidavit of plaintiff's expert raised a triable issue of fact as to whether the decedent's subsequent visit was to seek treatment related to the initial treatment, and whether the decedent's symptoms were indicative of lung cancer when he sought the initial treatment. Therefore, the court reinstated the plaintiff's claim against the hospital.

Accordingly, defendants motions for summary judgment are denied.

This constitutes the decision and order of this court.

Dated: January 10, 2006

J.S.C.

. Footnotes

Footnote 1: CPLR§214 provides, inter alia, that actions brought to recover damages for personal injury must be commenced within three years after the negligence claim arose.

Footnote 2: CPLR §214 -a states that a cause of action for medical malpractice must be commenced within two years and six months except where there is continuous treatment for the same illness.

Footnote 3: The admitting note was signed by Dr. Appel who described plaintiff's condition as obstructive sleep appnea, chronic tonsillitis and nasal septal deviation. Defendants Exhibit A.

Footnote 4: ¶ 4 Defendant (Sokol's) Supporting Affirmation, September 30, 2004 and Plaintiff's Exhibit G.

Footnote 5: ¶ 5 Defendant's supporting affirmation.

Footnote 6: Plaintiff's Exhibit A.

Footnote 7: Plaintiff's Exhibit E.

Footnote 8: Plaintiff's Exhibit A

Footnote 9: Defendant's Reply Affirmation ¶ 10.

Footnote 10: Plaintiff's Exhibit G.