
    Sallie Massie, Respondent, v David B. Crawford, Jr., Appellant, et al., Defendant.
    Argued October 8, 1991;
    decided November 25, 1991
    
      POINTS OF COUNSEL
    
      Francis B. Mann, Jr., for appellant.
    I. Plaintiff failed to come forth with proof of a continuous course of treatment prior to the two-year, 10-month "gap”. (Connell v Hayden, 83 AD2d 30; Zuckerman v City of New York, 49 NY2d 557; Megginson v Rose, 121 AD2d 608; Barrella v Richmond Mem. Hosp., 88 AD2d 379; Werner v Kwee, 148 AD2d 701; Eagleston v Mt. Sinai Med. Center, 144 AD2d 427, 74 NY2d 601; Ciciless v Lane, 129 AD2d 759; Maresca v Berson, 84 AD2d 760; Davis v City of New York, 38 NY2d 257; Charalambakis v City of New York, 54 AD2d 553, 46 NY2d 785.) II. Plaintiff failed to come forth with any evidence linking treatment rendered in 1984 with office visits in 1981 and prior thereto, and failed to controvert Dr. Crawford’s opinion that there was no linkage. (Brown v St. Barnabas Hosp., 159 AD2d 674; Weinblatt v Lydia Hall Hosp., 105 AD2d 781; Delaney v Muscillo, 138 AD2d 258, 72 NY2d 807, 73 NY2d 852; Matott v Ward, 48 NY2d 455; Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140; Hartley v Szadkowski, 32 AD2d 550; Corcoran Group v Morris, 107 AD2d 622, 64 NY2d 1034; Smith v Johnson Prods. Co., 95 AD2d 675; Gitlin v Cassell, 107 AD2d 636; Frimmerman v Bernstein, 107 AD2d 795.) III. Continuous treatment is not established merely by reason of plaintiff’s continued reliance on defendant’s advice or her continued use of a prescribed device. (DeJurenev v Robins Co., 114 AD2d 333; Goldsmith v Howmedica, Inc., 67 NY2d 120; Szakalski v Aubry, 148 AD2d 972; McDermott v Torre, 56 NY2d 399; Fox v Glens Falls Hosp., 129 AD2d 955; Parrott v Rand, 126 AD2d 621, 69 NY2d 611; Bikowicz v Nedco Pharmacy, 114 AD2d 708, 68 NY2d 641; Bernardo v Ayerest Labs., 99 AD2d 430.) IV. Unless there is continuity of treatment the mere continuation of a physician-patient relationship will not toll the Statute of Limitations. (Richardson v Orentreich, 64 NY2d 896.)
    
      
      Thomas P. Valet and Paul D. Rheingold for respondent.
    The court below properly determined that respondent presented sufficient proof of continuous treatment to defeat the motion for summary judgment. (McDermott v Torre, 56 NY2d 399; Coyne v Bersani, 61 NY2d 939; Richardson v Orentreich, 64 NY2d 896; Cannon v Pfleider, 19 AD2d 625; Patrolman’s Benevolent Assn. v City of New York, 27 NY2d 410; Rizk v Cohen, 73 NY2d 98; Curcio v Ippolito, 63 NY2d 967.)
   OPINION OF THE COURT

Simons, J.

Plaintiff instituted this action in 1985 seeking to recover damages for personal injuries, sustained in January 1984, which allegedly were caused by the presence of an intrauterine birth control device (IUD). The action is against Ortho Pharmaceutical Corporation, the manufacturer of the IUD, and defendant Crawford, the gynecologist who inserted it in 1969. Defendant gynecologist moved for partial summary judgment contending that claims of malpractice occurring more than two years and six months prior to January 1984 were time barred. The courts below denied the motion, holding that the continuous treatment exception applied and presented a question of fact for the jury. The appeal is before us by leave of the Appellate Division. We now reverse.

Plaintiff’s claim of continuous treatment rests upon her allegation that when defendant inserted the IUD, he advised her that it "could remain in place indefinitely, but that [she] should return to [him] periodically for routine gynecologic examinations.” Plaintiff followed that advice and returned to defendant periodically. The examinations were unremarkable until March 1981 when a vulva-vaginal infection, apparently unrelated to the IUD, was discovered and successfully treated. Plaintiff’s next contact with defendant was on January 30, 1984 when she telephoned him to complain of abdominal pain and fever. Defendant examined her the next day and discovered that she was suffering from pelvic inflammatory disease (PID) which required a hysterectomy.

Plaintiff alleges that the pelvic inflammatory disease was caused by the IUD and she asserts that defendant was negligent in providing follow-up care following insertion of the IUD, in performing periodic examinations, in permitting the IUD to remain in place for an extensive period of time, in failing to timely remove the IUD and in failing to timely diagnose and treat the PID. Defendant claims that the PID was separate and discrete from the initial treatment and that claims predicated on conduct occurring more than two years and six months prior to 1984 were barred.

An action for medical malpractice must be commenced within two years and six months of the date of accrual (CPLR 214-a). A claim accrues on the date the alleged malpractice takes place (Nykorchuck v Henriques, 78 NY2d 255, 258; Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630, 634-635). The statute is tolled until after a plaintiffs last treatment, however, " 'when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint’ ” (McDermott v Torre, 56 NY2d 399, 405, quoting from Borgia v City of New York, 12 NY2d 151, 155).

Defendant established that more than two years and six months had elapsed between January 1984 and plaintiff’s last previous visit, in March 1981. That interval between visits is not per se dispositive of defendant’s claim that the statute has run, but because of it the burden shifted to plaintiff to establish that her examinations constituted "continuous treatment” and that the tolling exception was applicable (Rizk v Cohen, 73 NY2d 98; and see, Werner v Kwee, 148 AD2d 701, 702; Valenti v Trunfio, 118 AD2d 480, 483; Barrella v Richmond Mem. Hosp., 88 AD2d 379, 380).

We have held that "continuous treatment” involves more than a physician-patient relationship (McDermott v Torre, supra, at 405; Borgia v City of New York, supra, at 157). There must be ongoing treatment of a medical condition. The doctrine rests on the premise that the trust and confidence that marks such relationships puts the patient at a disadvantage in questioning the doctor’s skill because to sue while undergoing treatment necessarily interrupts the course of treatment. "It would be absurd”, we stated, "to require a wronged patient to interrupt corrective efforts by serving a summons on the physician” under those circumstances (Borgia v City of New York, supra, at 156 [emphasis added]). A patient is not entitled to the benefit of the toll in the absence of continuing efforts by a doctor to treat a particular condition because the policy reasons underlying the continuous treatment doctrine do not justify the patient’s delay in bringing suit in such circumstances (Nykorchuck v Henriques, supra, at 259; see also, Grellet v City of New York, 118 AD2d 141, 147-148). Thus, we have emphasized that continuous treatment "does not contemplate circumstances where a patient initiates return visits merely to have * * * her condition checked” (McDermott v Torre, supra, at 405). Routine examinations of a patient who appears to be in good health or diagnostic examinations, even when conducted repeatedly over a period of time, are not "a course of treatment” (Charalambakis v City of New York, 46 NY2d 785, 787; see also, Nykorchuck v Henriques, supra; Davis v City of New York, 38 NY2d 257).

The present action does not come within the exception. The single procedure defendant performed for plaintiff was the insertion of the IUD: her subsequent visits to him were for routine gynecological examinations, not therapy to correct a medical condition. Consequently, these visits may not serve as a basis for applying the continuous treatment exception because plaintiff could have interrupted the services and switched physicians at any time without jeopardizing her health.

The point is illustrated by the dissent’s hypothetical in support of its position that a patient visiting a physician for checkups following surgery is undergoing continuous treatment (see, dissenting opn, at 521). Manifestly, there is continuing treatment involved in overseeing a patient’s recovery following surgery. Assuming visits for that purpose could legitimately last more than the statutory period, the patient could not reasonably be expected to terminate aftercare and sue for malpractice while the physician was still checking the wounds and monitoring the healing process. Here, by contrast, the dissenters would extend the exception to cover a relationship over 15 years, and conceivably for the remainder of the patient’s life, when there was no treatment to continue and the plaintiff would jeopardize nothing by instituting suit at any time if she believed defendant guilty of malpractice.

Accordingly, the order of the Appellate Division should be reversed, with costs, the motion for partial summary judgment granted, and the certified question answered in the negative.

Hancock, Jr., J.

(dissenting). The order should be affirmed. As the majority at the Appellate Division properly held (160 AD2d 447, 448-449), the record presents "issues of fact * * * regarding the application of the continuous treatment doctrine” (id., at 449) warranting denial of summary judgment.

It is not disputed that the insertion of the IUD was a medical treatment or that the continued presence of the device in plaintiffs body constituted a medical condition (see, CPLR 214-a). Nor can it be questioned that plaintiff had an ongoing relationship of trust and confidence with Dr. Crawford who continued as her only gynecologist and saw her frequently over a 15-year period. The decisive question pertains to the purpose and nature of plaintiffs visits to Dr. Crawford after the procedure in 1969 when the IUD was implanted. If, as the majority opinion suggests, the purpose of plaintiffs subsequent visits was solely for "routine gynecological examinations, not therapy to correct a medical condition” (majority opn, at 520), the continuous treatment doctrine would not be applicable. For then it could not be said that the subsequent visits were referable to the initial medical treatment in implanting the IUD and plaintiffs subsequent medical condition in having it remain in her body (see, e.g., McDermott v Torre, 56 NY2d 399, 405; Charalambakis v City of New York, 46 NY2d 785, 787). But it is not that simple.

Plaintiff states that her subsequent visits were referable to the continued implantation of the IUD. These visits, she maintains, were made at the instance of Dr. Crawford who instructed her to return for follow-up visits in accordance with her "understanding that during this entire course of treatment by defendant that he was supervising the care of the IUD, and that these routine examinations included check-ups for the IUD”. That these visits may have included general examinations or other medical services in addition to IUD care certainly does not, as a matter of law, make them "discrete, complete and routine” examinations unrelated to defendant’s follow-up care of plaintiffs IUD condition. Her relationship with Dr. Crawford with respect to the IUD, she says, continued through her last visit to him in 1984. Indeed, plaintiffs medical records confirm that plaintiff reported to defendant 22 times over the 15 years after defendant inserted the IUD. If plaintiffs factual assertions concerning Dr. Crawford’s continued supervision and care concerning the implanted IUD are accepted as true, the continuous treatment doctrine would apply. Her allegations describe a situation that is no different from when a patient consults a surgeon for a surgical procedure and then returns for follow-up care.

Thus, there are factual questions pertaining, at least, to Dr. Crawford’s instructions concerning follow-up care for the IUD, the understanding as to Dr. Crawford’s continued responsibility for supervision for the IUD, the motivating factor for the visits, and the nature of the medical services rendered on those visits. These questions should not be decided on motion but in a trial (see, Richardson v Orentreich, 64 NY2d 896, 898-899; Gudmundson v Axelrod, 57 NY2d 930, 932). As our Court has often pointed out, " 'issue-finding, rather than issue-determination, is the key to the [summary judgment] procedure’ ” (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, quoting Esteve v Abad, 271 App Div 725, 727).

Our recent decision in Nykorchuck v Henriques (78 NY2d 255), cited by the majority, is plainly distinguishable and demonstrates precisely why summary judgment is not called for here. In Nykorchuck, the original services constituting the alleged malpractice pertained to an examination of a lump in the patient’s breast. The Court dismissed the subsequent services claimed to constitute the continuous treatment "related to a separate medical condition, endometriosis” (id., at 259 [emphasis added]). Here, of course, the subsequent services, according to plaintiff, related to the same medical condition — the implanted IUD. Nor does it matter, as the Appellate Division pointed out, that there was a two-year and 10-month gap between the 1981 and 1984 visits. It "cannot be found as a matter of law that an ongoing physician-patient relationship was not contemplated nor that the trust and confidence involved in such relationship no longer existed” (160 AD2d 447, 449, supra; see, Richardson v Orentreich, 64 NY2d 896, 898-899, supra).

The issue is not whether Dr. Crawford is ultimately responsible but simply whether plaintiff should have a chance to prove that he is. In my opinion, depriving plaintiff of this right in the face of the factual questions presented in this record is not consistent with basic summary judgment law or with our decisions pertaining to continuous treatment. I, therefore, dissent.

Judges Alexander, Titone and Bellacosa concur with Judge Simons; Judge Hancock, Jr., dissents and votes to affirm in a separate opinion in which Chief Judge Wachtler and Judge Kaye concur.

Order reversed, etc.  