Marchak v Cooper

[*1] Marchak v Cooper 2009 NY Slip Op 52291(U) [25 Misc 3d 1224(A)] Decided on September 30, 2009 Supreme Court, New York County Schlesinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2009
Supreme Court, New York County

John P. Marchak and LUCY AMBROSINO MARCHAK, Plaintiffs,

against

Paul Richard Cooper, MD., and NEW YORK UNIVERSITY MEDICAL CENTER, Defendants.



113154/07



Attorney for Plaintiff

Edward A. Ruffo, Esq.

Danker & Milstein, P.C.

41 East 57th Street

New York, NY 10022

212-751-8000

Attorney for Defendant

Elliott J. Zucker, Esq.

Aaronson, Rappaport, Feinstein & Deutsch, LLP

757 Third Avenue

New York, NY 10017

212-593-6700

Alice Schlesinger, J.

Before the Court is a motion for summary judgment made exclusively on Statute of Limitation grounds. It is the defendant's contention here that the filing of the complaint, which occurred on October 1st, 2007 was untimely, in light of when they believe treatment with the defendant doctor, Dr. Cooper ended.

The Statute of Limitations in medical malpractice cases is two and a half years.But the time does not begin to run until one can say that actual treatment for that particular medical condition has ended. In other words, a general relationship with a doctor cannot toll the running of the statute. However, as long as there is arguably continuing treatment for the particular ailment or injury, or surgery involved, then the statute is tolled until that ceases.

What happened here? On October 26, 2004 the plaintiff first presented to the defendant and based on a recent MRI, received a diagnosis of a right and central disk herniation at levels T-7 to T-8, along with cord compression.

It was decided that surgery was called for. Dr. Cooper was at that time, (though now retired,) a neurosurgeon. The plan was for a discectomy with bone graft and placement of instrumentation at the designated site. The surgery was actually performed on November 29, 2004 and Mr. Marchak was discharged from the hospital on 12-5-04.After his discharge, there were two follow-up visits with Dr. Cooper in his office. The first occurring on December 21st, 2004 and the second on February 1st, 2005.

It is the defendant's contention that since no follow-up appointment was made on February 1st of 2005, in this regard Dr. Cooper testified at his deposition that certainly if the plaintiff felt that he wanted to come back he was welcome to, that their relationship for the treatment of the back injury ended on February 1st, 2005.

It should be noted and it is pointed out in the moving papers that Dr. Cooper, who later retired from the practice of medicine in June 2007, never saw the plaintiff again after the February 1st, 2005 visit. Therefore it is the defendant's position that the two and a half years began to run on [*2]February 1st, 2005. If that is the correct, then the filing of the complaint on October 1st of 2007 would be untimely.

However what makes this case an interesting one, and why I ultimately believe that this is an issue of fact for a jury to decide are the events that occurred between February 1st, 2005 and June 28, 2005. What were they?

According to the plaintiff's deposition testimony, he was in continuing pain. Therefore, he needed additional medication for the pain as well as referrals for physical therapy. He thereby testified that he tried to call Dr. Cooper on a number of occasions, but that Dr. Cooper did not return his calls. Therefore, plaintiff stated, that he felt he had no option but to e-mail the doctor's office to obtain the necessary medication and referral. Thus, between the dates of February 1st and June 28th there were e-mails, several of them, specifically between March 28, 2005 and June 28, 2005, between the plaintiff and Mary Ellen Costa, a nurse practitioner in defendant's office. As a nurse practitioner, she was licensed to renew prescriptions on her own and that is what she did.

So the issue is, did nurse practitioner Costa, who it could be argued, was acting as Dr. Cooper's agent, toll the Statute of Limitations, as far as Dr. Cooper's continuing treatment of the plaintiff. The defendant, at his deposition did not remember whether at the time of the e-mails, he was actually aware of them. This issue, I find is not one that can be decided, as a matter of law on a summary judgment motion such as this.

I find support for this in several cases, two of which were cited by the defendant in their moving papers. One is Forte v. Weiner, 214 AD2d 397, (1995, First Department) and the other is Cooper v. Kaplan 78 NY2d. 1103, (1991) from the Court of Appeals. The third, a Third Department case, Stilloe v. Contini 190 AD2d 419, (1993) is referred to in Forte.

So what do all these cases say? In the first instance, Cooper v. Kaplan does conclude that there was no continuous treatment. So it would seem to help the defendant's position. However, it is clear that the thrust of that decision and the thrust of the rational that there was no continuous treatment is found in the last paragraph which reads as follows: "While plaintiff's counsel argues that defendant supplied plaintiff with a six-month prescription, that she spoke to the defendant on at least two occasions to complain of leg pain, and that he advised her to continue the medication, there is no support in plaintiff's complaint or affidavits to these assertion. Indeed, the record does not reflect that plaintiff contemplated, or had, a continuing patient/physician relationship with defendant." It is on that basis that the Court granted the defendant's motion. I should point out that the words, used by the Court of Appeals, "that plaintiff contemplated" make it clear that a resolution of this issue depends not only on what the physician contemplates but also on the contemplation of the patient. It could be argued here that the plaintiff, by calling Dr. Cooper's office on several occasions (pursuant to his testimony), and corroborated by the documented e-mails between himself and Ms. Costa who worked for Dr. Cooper in his office and asking for prescriptions and a referral does constitute documentation of a contemplated continuing relationship with regard to treatment for his condition, the recent back surgery performed by the defendant.

With regard to the other two cases, it should be noted that in the First Department case, Forte, they do find continuing treatment and this relied on the prescribing of medication. More significantly in Stilloe, there was a five year period of time where the defendant did not see the plaintiff at all, but there were continued renewal of prescription for prednisone. There, the doctor acknowledged that he was aware that prescriptions were continuing which is not precisely the [*3]situation here.

However Stilloe, which cites to Cooper and is cited by Forte says, "The practice of the profession of medicine includes prescribing for any disease or physical condition" and the decision continues, "It cannot be determined on the record, as matter of law, that plaintiff's relationship with Contini," the defendant there, "had ceased".

I feel precisely the same way as the Appellate Division did in Stilloe. On the record we have here, which include the e-mails during the period from March to June, it cannot be determined as a matter of law, that the relationship for this condition terminated before that final day, June 28th.And if, in fact, a fact finder, finds that the relationship did continue, then of course this would be a timely brought action.

Therefore, the motion to dismiss on Statute of Limitations grounds is denied.

This decision constitutes the order of this Court.

Dated: September 30, 2009

__________________________

J.S.C.