Sigismondi v Central Suffolk Hosp.
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Sigismondi v Central Suffolk Hosp. 2013 NY Slip Op 32087(U) September 3, 2013 Supreme Court, Suffolk County Docket Number: 05-13726 Judge: Hector LaSalle Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 05-13726 CAL NO. 13-00200MM SHORT FO <M ORDER SUPREME COURT - STATE OF NEW YORK I.A.S. PART 48 - SUFFOLK COUNTY P R E SE N T : 14011. HECTOR D. La!SALLE Justice of the Supreme Court Plaintiff, - against CENTRAL SUFFOLK HOSPITAL, MOTION DATE 6-25- 13 ADJ. DATE 7-9-1 3 Mot. Seq. # 005 - MG # 006 - MD; CASEDISP GERARD L. SIGISMONDI, Prose 83 Drew Drive Eastport, New York 1 1941 FUMUSO, KELLY, DEVERNA, SNYDER, SWART & FARRELL, LLP Attorney for Defendant Central Suffolk Hospital 110 Marcus Boulevard, Suite 500 Hauppauge, New York 11788 Upon the following papers numbered 1 to 2 read on this motion and cross motion for summaw judgment; Notice of Motion/ Order to Show Cause and supporting papers {005)1 - 17; Notice of Cross Motion and supporting papers (006) 18-28; Answer ng Affidavits and supporting pap ers 29-39; Replying Afidavits and supporting papers ; Other -; -( -n tu eu se t t h ) it is, ORDERED that motion (005) by defendant, Central Suffolk Hospital, pursuant to CPLR 321 l(a) (5) and 2 14-a for an order dismissing the plaintiffs complaint on the basis that the action is barred by the applicable statute of limitations is granted and the complaint is dismissed; and it is further ORDERED that motion (006) by plaintiff, Gerard L. Sigismondi, for summary judgment in his favor has been rendered academic in light of dismissal of the action relating to motion (005), and is denied. Gerard L. Sigismondi commenced an action un jer Index No. 05- 13726 against defendant Central Suffol<Hospital on the basis of thle failure of the defendmt to disclose adverse laboratory tests results to him and or his primary care physician, Dr.Lawrence Goldmati, whom the plaintiff stated was on staff at defendant hospit 11. The plaintiff commenced an action under Indcx No. 05-13727 against defendant Central Suffolk Hospilal on the basis that it failed to treat him in a timcly fashion for ascites while he was a patient in the emergency room at Central Suffolk: Hospital on June 6,2C 02. By way of the order dated March 1,2010 (Molia, J.) the actions pending under Index No. 05-13727 and 05- L3726 were consolidated sua sponte under Index No. [* 2] Sigismondi v Central Suffolk Hospital Index Pro, 05-13726 Page NI. 2 05-1 37:!6, in that both actions arose from the same transaction in the hospital. The gravamen of the plaintiffs complaints is essentially that the defendant hospital, by its employees, failed to advise him and treat him for marked ascites and failed to provide his laboratory test results and records to his treating physician. In the plaintiff s papers submitted in support of motion (006) and in opposition to motion (005),the plaintiff set forth that the action filed under Index No. 05-13726 is based upon the defendant not informing him that he had cirrhosl s and in failing to furnish his primary care physician with the results and findings ofhis emergency room visit of June 3,2002. The plaintiff further contends in the action commenced under Index No. 05-13727, that he did r ot receive treatment for ascites. Medication was given and a paracentesis was performed one year later, which was not done at his June 6, 2002 visit. In support of motion (005),defendant, Central Suffolk Hospital, has submitted, inter alia, an attorney s affirmation; copy of the summons vvith notice filed June 3,2005 for Index No. 05-1 3727; notice of appearance with dc mand for a complaint; complaint for negligence and plaintiff demands trial by jury; defendant s answer, plaintiffs verified bill of pi~rticulars; supplemental answers to demand for a verified bill of particulars with exhibits; compliance conference order dated September 23,2012 directing that the plaintiff file a note of issue uith a copy of the order on, or within twenty days after, October 23,201 2; note of issue with certificate of read ness; certified records for Peconic Bay Medical Center dated June 6,2002 and October 3,2003; June 6,2002, August 28, 2003, and October 3,2003; and the transcript of the examination before trial of Gerard Sigism mdi dated August 2, 20 1 1. Procedurally, in the action pending under Index No. 05-13727, defendant withdrew motion (001) for dismis:<al the complaint which was brought pursuant to CPLR 214-a, as noted in the order dated November of 30, 2006 (Molia, J.). No other motions are outstanding. In motion (005), Central Suffolk Hospital seeks summary judgment dismissing the complaint on the basis tliat this action is for medical malpractice which allegedly occurred on June 6, 2002 at Central Suffolk Hospitiil, is subject to a two and one-half year statute of limitations pursuant to CPLR 214-a, and is barred by the applicable statute of limitations. This action was commenced by the filing of the summons and complaint on Junc 3,2005, and therefore, treatment rendered on June 6,2002 is not within the applicable two and one-half year statute of limitations provided in CPLR 214-a. While the plaintiff asserts that this action is bound by the three y:ar negligence statute of limitations, this court determines that the causes of action set forth in the consolidated actions are premised upon the alleged medical malpractice of the employees and staff at defendant Central Suffolk Hospital. Although the plaintiff uses the date of treatment at the emergency room at Central Suffolk Hospital interchangeably from June 3, 2002 with June 6, 2002, the actual date of treatment was June 6,2002, as evidenced by the hospital record and evidentiary proof. The essential question to be answered in determining the applicable statute of limitations is whether the conduct at issue constitutes an integral part of the process of rendering medical treatment to a patient (Rodriguez v Mount Sinai Medical Center, 5 Misc3d 1009 (A), 798 NYS2d 713 [Sup. Ct. Bronx County 20041). For a cause of action to survive the shorter statute to limitations applicable to medical malpractice and continue to be viable under the longer statute of limitations applicable to negligence, the gravamen of the compk int should not be negligence in furnishing medical treatment or conduct which bears a substantial relatior iship to the rendition of medical treatment by a licensed physician, but rather must point to the hospital s failure in fulfilling a different duty. Courts must therefore look for the reality and essence of the action and not its mer? name (DeLeon v Hospital of Albert Einstein College of Medicine, 164 AD2d 742 NYS2d 213 [ 1st [* 3] Sigismondi v Central Suffolk Hospital Index No. 05- 13726 3 Page N3. Dept 19911). Conduct may be deemed malpractice, rather than negligence, when it constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician. When the incc !mpetencealleged is of a specialized medical nature, deriving from the physician-patient relationship, and SUE stantially related to medical diagnosis and treatment, the action it gives rise to is by definition one for medica I malpractice rather than negligence (Payette v Rockefeller University, 220 AD2d 69,643 NYS2d 79 [ 1st Dept 19961). The claims in the instant action arise out of the rendition of care and treatment provided to the plaintiff in the emergency room. By way of his bill of particulars dated August 25,2005 and January 30,2007, the plaintiff asserts that the act:. complained of occurred on June 3, 2002, at 16:16 hours, in the emergency room at Central Suffolk Hospital on the basis he was not provided a diagnosis or an explanation as to the cause of his symptoms. He alleges that he was not advised that he had ascites, and that he was not treated for that condition during that emergency room visit by the physician s assistant, Peter Clark, who told him he had bloatedness caused by excessive acid in his body creating excessive fluid and that he should take caution because if this condition persistcd it can affect the lungs and plaintiff could stop breathing. The plaintiff further contends that his doctor was no 1 advised of his test results. The plaintiff further claimed that the emergency room physicians and the radiologist who completed the abdominal CT should be accountable as the CT scan was incorrectly read and interpreted. The plaintiff continues that the defendant made an erroneous diagnosis and ignored his signs and symptoms, afforded improper treatment and contraindicated drugs, and improperly took and administered tests. The pk intiff continues in a conclusive and speculative statement in his bill of particulars, without evidentiary proof, to assert that the emergency room records were altered. The plaintiff claims that he suffered liver failure, and end stage cirrhosis, varicies of the esophagus, portal vein hypertension, massive volume ascites, encephalopathy, gynecomastica, artd herniated umbilical cord (sic) as a result of the defendant s negligence in treatini; him. The plaintiff testified that he did not believe that fatty liver-ascites was written on his discharge sheet, and he was not told that was what hehad. He testified that he did not keep his discharge sheet. Although he identified his signature on the discharge sheet, he stated that his sheet did not advise him to follow up with Dr. Mehta or provide Dr. Mehta s telephone number. He further testified that he was not told to avoid alcohol. He testified that he was told to folllow up with Dr. Goldman whom he saw within a week or two afterwards. He belteved he told Dr. Goldman that he had blood work and a CAT scan. He further testified that Dr. Goldman stated he did not have the reports, but that he would get them. Such reports were included in Dr. Goldman s records. Dr. Goldman saw him about three times and sent him for blood work. The plaintiff also saw Dr. Schulman who ordered a CT scan. He never told Dr. Schulman that he had ascites. The plaintiff attached a copy of the discharge shleet which had the diagnosis of ascites written on it. The radiology report at issuc: was attached to his complaint. Based upon the foregoing, it is clear that plaintiffs claims are premised upon medical malpractice based upon alleged departures from the standards of care and treatment by emergency room physicians, hospital emplolrees, and staff, requiring expert testimony upon summary judgment or at trial. Thus, the two and one half year statute of limitations is applicable and bars this action which was not timely commenced by the plaintil f. However, whether or not there was continuous treatment must also be considered. As set forth in Gornez v Kar z,61 AD3d 108,874 NYS2d 162 [2d Dept 20091, pursuant to CPLR 214-a, an action for medical malpractice :must be commenced within two years and six months of the act, omission [* 4] Sigismondi v Central Suffolk Hospital Index r\ 0. 05-1 3726 Page No. 4 or failu-e complained of. However, the statute has a built-in toll that delays the running of the limitations period where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, om ssion, or failure. Under the continuous treatment doctrine, the 2 /z year period does not begin to run until thi: end of the course of treatment, when the course of treatment which includes the wrongful acts or omissiclns has run continuously and is related to the same original condition or complaint. The underlying premise, of the continuous treatment doctrine is that the doctor-patient relationship is marked by continuingtrust and cor fidence and that the patient should not be put to the disadvantage of questioning the doctor s skill in the midst of treatment, since the commencement of litigation during ongoing treatment necessarily interrupts the cou-se of treatment itself. Implicitly, the doctrine also recognizes that treating physicians are in the best positioii to identify their own malpractice and to rectify their negligent acts or omissions. The court continued that the continuous treatment doctrine applicable to medical malpractice actions contains three principal elements. The first is that the plaintiff continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period. The term, course of treatment, speaks to affirmative and ongoing conduct by the physician such as surgery, therapy, or the prescription of medicaions. A mere continuation of a general doctor-patient relationship does not qualify as a course of treatment for purposes of the statuiory toll. Similarly, continuing efforts to arrive at a diagnosis fall short of a cours 2 of treatment, as does a physician s failure to properly diagnose a condition that prevents treatment altogether. Based upon the facts of this case, it is determined as a matter of law that there was no continuous treatment by the defendant hospital for the condition complained of. The plaintiff obtained aftercare with Dr. Goldmm and Dr. Schulman, and Hater with Dr. Mehta, and did not obtain regular care and treatment from Central Suffolk Hospital for his ascites which was diagnosed in the emergency room at Central Suffolk Hospital on June 6,2002. The plaintiff was ,awareupon discharge from the emergency room that his care and treatment was to be provided by his primary pliysicians, with whom he was instructed to follow up, including specifically, Dr. Mehta. The second element of the continuous treatment doctrine applicable to medical malpractice actions is that the course of treatment provided by the physician be for the same conditions or complaints underlying the plaintiffs medical malpractice claim. When the plaintiff presented to Central Suffolk Hospital on August 25, 2003, approximately fifteen months after the June 6, 2002 visit, it was for a new and separate incidence of lower abdominal pain after the plaintiff had undergone surgery for repair of an umbilical hernia at Southampton Hospital in July 2003. He was admitted to Central Suffolk Hospital with the diagnosis of intestinal obstruction, accompanied with complaints of abdominal distention and constipation for one and a half weeks. Thus, the plaintiff was not treated for, diagnosed with, nor admitted for ascites, and presented with different complaints for a condition which later developed just prior to August 25,2003. Thus, the defendant did not present with the same condition alleged in the complaint, and the second element of the continuous treatment doctrine is inapplicable to extend the statute of limitations. The third element of the continuous treatment doctrine applicable to medical malpractice actions is that the physician s treatment be deeme:d continuous. Continuity of treatment is often found to exist when further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during the last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past. The law recognizes, however, that a discharge by a physician does not preclude application of the continuous treatment toll if the patient timely initiates a return visit to complain about and seek further treatment for conditions related to the earlier [* 5] Sigismondi v Central Suffolk Hospital Index No. 05- 12726 PageNo. 5 i treatment. Regardless of the absence of phy ical or personal contact between the plaintiff and the defendant in the interim, where the physician and patie t reasonably intended the patient s uninterrupted reliance upon the physician s observation, directions, conc rn, and responsibility for overseeing the patient s progress, the requirement for continuous care and treatme t for the purpose of the statute of limitations is certainly satisfied (Richardson v Orentreich, 64 NY2d 896,4 7 NYS2d 73 1 [1985]; Baiaban v Bachrach, 201 1 NY Slip Op [Sup 32734 ((U) Ct New York County 201 1 ). Here, it is determined that the plaintiff was discharged with specific instructions to follow up with his p imary care physician and was provided the name and telephone number of Dr. Mehta. The plaintiftwas not cheduled to return to the emergency department to follow up for additioinal testing, blood work, or other treat ent. Thus, there is no continuous treatment with regard to the third prong of the test to determine whether r not the statute of limitations should be extended or tolled. Accordingly, it is determined that departure from the accepted standa.rds of commenced within the two and one half treatment doctrine. Accordingly, the Turning to motion (006), thLe plainti been rendered academic by dismissal of the plaintiff s motion (006) is deemed to have Januari 30,201 3 as reflected by the court summary judgment on liability was on M on June 13,20 13, pursuant to his affidavi Sigismondi offers no excuse for the unti requires a showing of good cause for untimeliness-rather than simply permitt all, or c i perfunctory excuse, cannot be 261 [2004]; First UnionAuto Finrznce, 26 Misc 3d 1234A, 907 NYS2d 44 1 [Su any exa:use, good cause has not been d (006) seeks relief very different from action ,s barred by the statute of lirnit the relief sought in a timely motion, t (006) i s deemed untimely. It is further determined that even support his motion for summary elements of proof in a medical (2) evidence that such Nursing Home, 253 To prove a prima a substantial is action premised upon the alleged medical malpractice and by the defendant is barred by CPLR 2 14-a, as it was not timely tatute of limitations, which has not been tolled by the continuous is dismissed. eeks summary judgment in his favor, however, this motion has on in motion (005). In addition to being barred by CPLR 214-a, untimely served. The note of issue was filed in this action on puter records. The last date for plaintiff to serve a motion for 0 13. It is noted that plaintiffs cross motion (006) was served ice, beyond the 120 days in which to file such motion. Gerard bmission of motion (006). Good cause in CPLR 3212 (a) in making the motion-a satisfactory explanation for the rious, non-prejudical filings, however tardy. No excuse at (see Brill v City o New York, 2 NY3d 648,781 NYS2d f 3d 372,791 NYS2d 596 [2d Dept 20051; Tucci v Coieila, ounty 20 101). Based upon the failure of plaintiff to offer consider this motion for summary judgment. Motion at is, for a determination of liability, not whether the relief sought in an untimely motion is not identical to nsider the untimely motion. Thus, plaintiffs motion that the plaintiff has failed to or affidavit. The requisite a deviation or departure from accepted practice, and injury or damage (Holton v Sprain Brook Manor app denied 92 NY2d 8 18,685 NYS2d 420). establish that defendant s negligence was Felix Contracting Corp., 51 NY2d 308, NYS2d 700 [2d Dept 19961). Except medical opinion is necessary to such departure was a proximate 47 [ 19851; Lyons v McCauiey, [* 6] Sigismondi v Central Suffolk Hospital Index No. 05-13726 Page No. 6 252 AD2d 5 16,517,675 NYS2d 375 [2d De .1998],appdenied92NY2d 814,681 NYS2d475; BloomvCity o New York, 202 AD2d 465,465,609 NYS 45 [2d Dept 19941). The plaintiff has failed to do so, rendering f his application insufficient as a matter of la Accordingly, motion (006) by the pl .ntiff for summary judgment in his favor is denied. Dated: September 3,2013 Riverhead, NY HbN. HECTOR D. LASALLE; J.S.C. X FINAL DISPO TION NON-FINAL DISPOSITION
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