
    Diane Nykorchuck et al., Appellants, v Edgar Henriques et al., Respondents.
    Argued May 30, 1991;
    decided July 9, 1991
    
      POINTS OF COUNSEL
    
      W. Farley Jones and E. Stewart Jones for appellants.
    I. Under the circumstances of this case, a continuous course of omissions may serve as a basis for the application of the continuous treatment doctrine. (Massie v Crawford, 160 AD2d 447, 76 NY2d 851; Borgia v City of New York, 12 NY2d 151; McDermott v Torre, 56 NY2d 399; Werner v Kwee, 148 AD2d 701; Kearney v GVGHA, 125 Misc 2d 716; Richardson v Orentreich, 64 NY2d 896; Greene v Greene, 56 NY2d 86; Coyne v Bersani, 61 NY2d 939; Barrella v Richmond Mem. Hosp., 88 AD2d 379; Shumway v DeLaus, 152 AD2d 951.) II. Plaintiffs breast lump was related to other conditions such that treatment of the other conditions tolls the statute as to the treatment of the breast lump. (Borgia v City of New York, 12 NY2d 151; McDermott v Torre, 56 NY2d 399; Fonda v Paulsen, 46 AD2d 540; Bikowicz v Nedco Pharmacy, 114 AD2d 708; Fish v Ardan, 130 Misc 2d 596; Rizk v Cohen, 73 NY2d 98; Lomber v Farrow, 91 AD2d 725.)
    
      Christine Kirwin Krackeler for respondents.
    I. The court below properly found that the undisputed facts of this case entitle defendants to summary judgment. (Werner v Kwee, 148 AD2d 701; Massie v Crawford, 160 AD2d 447; Rizk v Cohen, 73 NY2d 98.) II. Treatment of plaintiff by defendants for endometriosis and infertility may not be applied to effectively extend the Statute of Limitations with respect to defendants' alleged failure to monitor plaintiff’s breast condition. (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Duffy v Horton Mem. Hosp., 66 NY2d 473; Borgia v City of New York, 12 NY2d 151; Rizk v Cohen, 73 NY2d 98; McDermott v Torre, 56 NY2d 399; Charalambakis v City of New York, 46 NY2d 785; Fish v Ardan, 130 Misc 2d 596; Ciciless v Lane, 129 AD2d 759; Richardson v Orentreich, 64 NY2d 896; Edmonds v Getchonis, 150 AD2d 879.) III. Failure to diagnose or monitor a condition does not constitute continuous treatment as that theory and CPLR 214-a have been construed by New York courts for Statute of Limitations purposes. (McDermott v Torre, 56 NY2d 399; Delaney v Muscillo, 138 AD2d 258; Davis v City of New York, 38 NY2d 257; Grellet v City of New York, 118 AD2d 141.)
   OPINION OF THE COURT

Chief Judge Wachtler.

This action for medical malpractice arises out of the defendant doctor’s alleged failure to properly diagnose and monitor a lump in plaintiff’s right breast. Plaintiff was ultimately diagnosed as having breast cancer, which required surgery and chemotherapy.

The question presented on the appeal is whether this suit, which was commenced more than eight years after the lump was first brought to defendant’s attention and more than four years after plaintiff’s last appointment with defendant in connection with another medical condition, is barred by the 21/i-year Statute of Limitations for medical malpractice (see, CPLR 214-a). In opposition to defendants’ motion to dismiss the complaint as time barred, plaintiff claimed the benefit of the "continuous treatment doctrine,” which, when applicable, tolls the running of the Statute of Limitations until the end of the course of treatment for the particular medical condition (see, id.; McDermott v Torre, 56 NY2d 399; Borgia v City of New York, 12 NY2d 151).

Supreme Court denied the motions to dismiss, perceiving questions of fact as to whether the continuous treatment doctrine was applicable. The Appellate Division held, however, that the doctrine was inapplicable because plaintiff’s allegations did not establish that defendant doctor had undertaken any treatment for plaintiff’s breast condition (153 AD2d 316).

We agree with the Appellate Division that the continuous treatment doctrine is inapplicable to the facts of this case as alleged by plaintiff and that, accordingly, the action is time barred.

Plaintiff first began seeing Dr. Henriques in 1974 for infertility problems, which were determined to be secondary to endometriosis. The doctor treated plaintiff for that condition over a period of years, culminating in surgery in April 1982. During an office visit in July 1979, plaintiff brought to the doctor’s attention a lump in her right breast. After examining the breast, he allegedly told plaintiff that the lump was attributable to noncancerous fibrocystic disease and that "we will have to keep an eye on it.” In addition, lumps in both breasts were noted during an examination of plaintiff conducted by an unspecified person upon plaintiff’s admission to the hospital for the April 1982 surgery. No further evaluation was performed at that time.

After the surgery, plaintiff saw the doctor three times, the last time in September 1983, for postoperative care and adjustment of estrogen replacement medication. The doctor phoned in renewals of plaintiff’s prescriptions in 1984 and in June 1985. In December 1985, plaintiff scheduled an appointment with the doctor because she had detected enlargement of the mass in her right breast. The doctor examined defendant in January 1986 and immediately referred her to an oncologist, who diagnosed breast cancer. This action was commenced in December 1987.

A medical malpractice claim generally accrues on the date of the alleged wrongful act or omission and is governed by a 214-year Statute of Limitations (Davis v City of New York, 38 NY2d 257, 259; CPLR 214-a). Under the continuous treatment doctrine exception, however, the 214-year period does not begin to run until the end of the course of treatment " '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, supra, at 405, quoting Borgia v City of New York, supra, at 155). The purpose of the doctrine is to "maintain the physician-patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure” (McDermott v Torre, supra, at 408). The doctrine rests on the premise that it is in the patient’s best interest that an ongoing course of treatment be continued, rather than interrupted by a lawsuit, because "the doctor not only is in a position to identify and correct his or her malpractice, but is best placed to do so.” (Id.)

Thus, essential to the application of the doctrine is that there has been a course of treatment established with respect to the condition that gives rise to the lawsuit. We have held that neither the mere "continuing relation between physician and patient” nor "the continuing nature of a diagnosis” is sufficient to satisfy the requirements of the doctrine (id,., at 405, 406). In the absence of continuing efforts by a doctor to treat a particular condition, none of the policy reasons underlying the continuous treatment doctrine justify the patient’s delay in bringing suit.

Here, plaintiff has failed to allege facts which would support a finding that a course of treatment was established in connection with her breast condition. The only course of treatment alleged was related to a separate medical condition, endometriosis. Under the relevant statute and case law, this is not sufficient. CPLR 214-a explicitly requires that, for the toll to apply, the continuous treatment must be "for the same illness, injury or condition which gave rise to the * * * act, omission or failure” complained of (see also, McDermott v Torre, supra, at 405; Borgia v City of New York, supra, at 155 [the course of treatment must be "related to the same original condition or complaint”]). No connection between plaintiff’s breast condition and the course of treatment for endometriosis has been alleged.

Nor do the isolated breast examinations, only one of which is alleged to have been performed by defendant doctor during the relevant period, establish a course of continuous treatment with respect to plaintiff’s breast condition (see, Davis v City of New York, 38 NY2d 257, supra). In Davis, we held that two diagnostic examinations, conducted a year apart, were "discrete and complete” and did not constitute continuous treatment (38 NY2d, at 260). The examinations in this case were equally "discrete and complete” and were separated by an even greater period of time.

A holding that the continuous treatment doctrine is applicable to these facts would fundamentally extend and alter the doctrine. The gravamen of plaintiff’s claim is not that the doctor performed certain negligent acts or omissions during a course of treatment for her breast condition, but rather that the doctor was negligent in failing to establish a course of treatment at all. While the failure to treat a condition may well be negligent, we cannot accept the self-contradictory proposition that the failure to establish a course of treatment is a course of treatment.

For these reasons, we conclude that the continuous treatment doctrine is inapplicable and that the action is time barred.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Kaye, J.

(dissenting). In my view, plaintiff has made a sufficient factual showing of continuous treatment by her gynecologist — who treated her throughout more than 12 years —to avoid dismissal of her complaint as a matter of law on Statute of Limitations grounds. I would reverse the Appellate Division order and reinstate Supreme Court’s holding that there is an issue of fact as to defendant doctor’s continuous treatment of the plaintiff.

Plaintiff first consulted defendant in September 1974. When, during plaintiff’s regularly scheduled visit in July 1979, defendant diagnosed fibrocystic disease in plaintiff’s right breast, he told her that "we will have to keep an eye on it.”

Defendant saw plaintiff regularly over the next several years, including consultation for a "bump” near her left breast and a hysterectomy which he performed in April 1982; examination at that time revealed a cyst on her right breast and masses in each breast. After defendant performed the hysterectomy, he prescribed hormone replacements, including estrogen, for plaintiff at least through June 1985, the date he last approved refills of her prescriptions. Then, in defendant’s own words, "On January 13, 1986, the plaintiff came to my office for a gynecological check-up. Upon examining the plaintiff, I detected a mass in her right breast. In accordance with proper medical practices, I immediately consulted with Dr. Frederick Lane, an oncologist surgeon at Albany Medical Center Hospital. Dr. Lane saw the plaintiff that same day and performed a biopsy which showed the right breast to be cancerous. Dr. Lane subsequently performed a mastectomy on the plaintiff.”

On these allegations, there is at least an issue of fact as to the timeliness of plaintiff’s suit commenced in December 1987, less than two years after the diagnosis of breast cancer and well within the Statute of Limitations.

Plaintiff has alleged that her gynecologist diagnosed a breast disease that he apparently felt at the time could be treated by close monitoring (unlike his later reference to an oncologist surgeon). According to plaintiff, defendant assured her that he would "keep an eye on [her disease],” thus "lulling [her] into a false sense of security by an apparent lack of concern about her breast mass.” Despite his awareness of breast lumps or masses in 1979, 1980 and 1982, he at no time recommended any further testing, evaluation or consultation during her periodic contacts with him. Clearly, these acts of alleged negligence, combined with wrongful omissions, may constitute a continuous course of treatment, separate and apart from any treatment for endometriosis (see, Borgia v City of New York, 12 NY2d 151, 155).

Indeed, the majority’s pivotal assumption throughout its writing that plaintiff was being treated by her gynecologist solely for the separate condition of endometriosis ignores the evidence of additional gynecological treatment — for example, defendant’s diagnosis of breast disease, his assertion that he would monitor the disease, the later consultation for a breast lump, and the hysterectomy (the hospital admission examination revealing "bilateral mobile masses in the upper quadrant of each breast”).

"[W]here the physician and patient reasonably intend the patient’s uninterrupted reliance upon the physician’s observation, directions, concern, and responsibility for overseeing the patient’s progress,” the requirements of the continuous treatment doctrine are satisfied (Richardson v Orentreich, 64 NY2d 896, 898). Plaintiff’s allegations of additional malpractice regarding the estrogen — failure to use caution in prescribing estrogen given her history and fibrocystic breast disease, and prescribing estrogen to plaintiff for more than a year without a baseline mammogram or physical examination — bring the last date of treatment well within the Statute of Limitations.

I agree wholeheartedly with the majority that one of the policy grounds underlying the continuous treatment doctrine is that a patient should not have to choose between continuing an ongoing course of treatment and bringing suit for malpractice — a policy fully applicable to the present case. The course of treatment continued over a period of years, during which time plaintiff claims she relied upon her physician to monitor her condition of fibrocystic breast disease and during which time she developed breast cancer. The continuous treatment doctrine, properly applied, should relieve plaintiff of the burden of challenging her doctor’s expertise during this time.

On this record, I would not deny the plaintiff her day in court.

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

Order affirmed, with costs. 
      
       "Plaintiff” refers to plaintiff Diane Nykorchuck. The other plaintiff in this action is her husband, who sues for derivative damages.
     