
    Catherine McDermott, Respondent, v Douglas Torre et al., Appellants, et al., Defendant.
    Argued May 11, 1982;
    decided June 15, 1982
    
      POINTS OF COUNSEL
    
      William, W. Haury, Jr., and George van Setter for Douglas Torre, appellant.
    I. The court below erred as a matter of law in adopting the Fonda v Paulsen definition of continuous treatment. (Florio v Cook, 65 AD2d 548; Merced v New York City Health & Hosps. Corp., 44 NY2d 398; Weber v Scheer, 58 AD2d 520; Cooper v Edinbergh, 75 AD2d 757; Feigelson v Ryan, 108 Misc 2d 192; Davis v City of New York, 38 NY2d 257; Fonda v Paulsen, 46 AD2d 540; Schiffman v Hospital for Joint Diseases, 36 AD2d 31, 29 NY2d 483; Kossick v United States, 330 F2d 933; Borgia v City of New York, 12 NY2d 151.) II. The practical effect of the Fonda v Paulsen decision could result in an indefinite extension of the Statute of Limitations. (Fonda v Paulsen, 46 AD2d 540; Borgia v City of New York, 12 NY2d 151.) III. Frew v Hospital of Albert Einstein Coll. of Medicine Div. of Montefiore Hosp. & Med. Center is inapposite to this appeal. (Frew v Hospital of Albert Einstein Coll, of Medicine Div. of Montefiore Hosp. & Med. Center, 76 AD2d 826.) IV. Plaintiff’s affidavit is insufficient to defeat a motion for summary judgment. (Di Sabato v Soffes, 9 AD2d 297; Starbo v Ruddy, 66 AD2d 950; Banks v Auerbach, 56 AD2d 819; Indig v Finkelstein, 23 NY2d 728; Doyon v Bascum, 38 AD2d 645; Brush v Olivo, 81 AD2d 852; McKnight v New York City Health & Hosps. Corp., 70 AD2d 587; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427.) V. In the alternative, a hearing should be held solely on the issue of the nature of the office visit so as to determine whether there was a continuing course of treatment or merely separate acts of medical malpractice. (Matter of Hurd v County of Allegany, 39 AD2d 499; Dunn v Mager, 47 AD2d 919.)
    
      Alfred K. Kestenbaum, Matthew H. Ross and Betsy F. Woolf for Central Health Laboratories, Inc., and others, appellants.
    I. As a matter of law, the biopsy report by defendant Laboratories did not constitute continuous treatment. (Fonda v Paulsen, 46 AD2d 540; Davis v City of New York, 38 NY2d 257; McQuinn v St. Lawrence County Lab., 28 AD2d 1035, 21 NY2d 644; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 1073, 374 US 808; Borgia v City of New York, 12 NY2d 151; Schiffman v Hospital for Joint Diseases, 36 AD2d 31, 29 NY2d 483; Florio v Cook, 65 AD2d 548, 48 NY2d 792; Charalambakis v City of New York, 46 NY2d 785.) II. There was no continuous treatment by defendant physicians; even if there were, such treatment was not imputable to defendant Laboratories. (Borgia v City of New York, 12 NY2d 151; Renda v Frazer, 100 Misc 2d 511, 75 AD2d 490.) III. In any event, plaintiff’s complaint is barred by the two- and one-half year Statute of Limitations under CPLR 214-a. IV. The decision below will result in unwarranted higher costs to the public for health services by clinical laboratories and other health care providers.
    
      David S. Gould and Gerald J. Mondora for respondent.
    I. The Statute of Limitations did not begin to run until the termination of respondent’s continuous treatment by appellant Torre. (Wear v State of New York, 33 AD2d 886; Borgia v City of New York, 12 NY2d 151; Fonda v Paulsen, 46 AD2d 540; Miller v Wells, 58 AD2d 954; Florio v Cook, 65 AD2d 548, 48 NY2d 792; Renda v Frazer, 100 Misc 2d 511, 75 AD2d 490; Holdridge v Heyer-Schulte Corp. of Santa Barbara, 440 F Supp 1088; Szajna v Rand, 75 AD2d 617; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Dickey v County of Nassau, 65 AD2d 780.) II. The three-year Statute of Limitations should apply in this case. (Frew 
      
      v Hospital of Albert Einstein Coll, of Medicine Div. of Montefiore Hosp. & Med. Center, 76 AD2d 826; Szajna v Rand, 75 AD2d 617.) III. The continuous treatment rendered by Dr. Torre should be imputed to Laboratories for the purpose of tolling the Statute of Limitations against it. (Holdridge v Heyer-Schulte Corp. of Santa Barbara, 440 F Supp 1088; Graddy v New York Med. Coll., 19 AD2d 426; Fonda v Paulsen, 46 AD2d 540; Florio v Cook, 65 AD2d 548.) IV. Public policy considerations dictate that the decision below be affirmed. (Topel v Long Is. Jewish Med. Center, 55 NY2d 682; Centeno v City of New York, 48 AD2d 812, 40 NY2d 932; Schiffman v Hospital for Joint Diseases, 36 AD2d 31; Roginsky v Richardson-Merrell, Inc., 378 F2d 832.)
    
      Hope S. Foster, of the District of Columbia Bar, admitted pro hac vice, for the American Clinical Laboratory Association, amicus curiae.
    
    I. Application of the continuing treatment doctrine would be contrary to the law of this State. (Fonda v Paulsen, 46 AD2d 540; McQuinn v St. Lawrence County Lab., 28 AD2d 1035; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 1073, 374 US 808; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Borgia v City of New York, 12 NY2d 151.) II. Application of the continuing treatment doctrine to the independent laboratory would be inappropriate and unwise as a matter of policy.
   OPINION OF THE COURT

Chief Judge Cooke.

In an action for medical malpractice arising from a negligent act occurring before July 1, 1975 and where there has been continuous treatment extending beyond that date, the three-year Statute of Limitations applies rather than the shorter period of CPLR 214-a. The continuing treatment by the physician, however, cannot be imputed to an independent laboratory in the absence of an agency or other relevant relationship between the laboratory and doctor or some relevant continuing relation between the laboratory and the patient.

On May 10, 1974, plaintiff consulted defendant Torre, a dermatologist, and requested that he examine a dark mole on her left ankle. Torre excised the mole and submitted a specimen to defendant Central Health Laboratories, Inc. (Laboratories), for a pathology report. About one week later, Torre informed plaintiff that the laboratory report was negative and “therefore nothing further had to be done”.

Plaintiff saw Torre at least eight more times between May 10,1974 and September 13,1976. During that period, plaintiff sought medical attention for various other ailments, but also complained about continued pain and a grayish color in her ankle. Torre re-examined the ankle several times and referred to the earlier biopsy report at least once. On each occasion, and even at plaintiff’s last visit, Torre reassured her that there was no cause for concern.

In May, 1977, plaintiff consulted defendant Ju, a plastic surgeon. He assured her that her ankle was healed and free of disease.

Later developments proved the earlier diagnosis to be wrong. In May, 1978, plaintiff discovered a lump in her groin. She immediately consulted a surgeon, who discovered a malignant melanoma after an operation on May 18. Further surgery in June, 1978 included removing another malignant melanoma from the site where Torre had excised the mole some four years earlier. Plaintiff was required to undergo further, radical surgery and extensive physical therapy. She has a severe limp and other permanent, debilitating injuries.

Plaintiff commenced this suit for medical malpractice in 1979. Torre was served on July 5; Laboratories on August 17. Laboratories successfully moved to dismiss the complaint on the ground that the action was time-barred by the three-year Statute of Limitations (CPLR 214, subd 6). Subsequently, Torre moved for summary judgment on the same basis, and, alternatively, that if continuous treatment were found, then the action was barred by the two- and one-half year limitation of CPLR 214-a. Plaintiff opposed the motion by arguing that continuous treatment had occurred, but that the three-year period was nonetheless applicable. Torre’s motion was granted.

The Appellate Division unanimously reversed (82 AD2d 152). That court held that the continuous treatment doctrine could not be determined on the record as a matter of law and that the three-year Statute of Limitations was applicable. It also ruled that Torre’s continuous treatment could be imputed to Laboratories. Defendants were granted leave to appeal by the Appellate Division on a certified question. The order of the Appellate Division should be modified by dismissing the action as to Laboratories.

Initially, attention must be directed to whether the continuous treatment doctrine is applicable in the present case. Under that rule, the time in which to bring a malpractice action is stayed “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” (Borgia v City of New York, 12 NY2d 151, 155). The concern, of course, is whether there has been continuous treatment, and not merely a continuing relation between physician and patient.

As a starting point, continuous treatment does not contemplate circumstances where a patient initiates return visits merely to have his or her condition checked (see id.). The Statute of Limitations may begin to run “once a hospital or physician considers the patient’s treatment to be completed and does not request the patient to return for further examination” (1 Weinstein-Korn-Miller, NY Civ Prac, par 214-a.03, p 2-321; cf. Davis v City of New York, 38 NY2d 257). This is not to say, however, that a complete discharge by a physician forever bars a finding of continuing treatment. Included within the scope of “continuous treatment” is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment. Thus, there will be continuing treatment when a patient, instructed that he or she does not need further attention, soon returns to the doctor because of continued pain in that area for which medical attention was first sought.

Contrary to plaintiff’s position, the continuing nature of a diagnosis does not itself amount to continuous treatment. Fonda v Paulsen (46 AD2d 540), upon which plaintiff relies, does not stand for that proposition. There, a pathologist’s misdiagnosis of a biopsy resulted in the patient’s not receiving treatment, notwithstanding the patient’s repeated complaints of pain. Critical in Fonda was that the patient had returned to the doctor, albeit because of another injury, seeking treatment for tenderness at the spot where the biopsy excision had been made, and did so in a timely manner.

Properly read, Fonda does support plaintiff’s claim of continuous treatment. As in Fonda, plaintiff returned to her doctor for other reasons, but she allegedly requested him also to examine her ankle because of continuing pain. Issues of fact exist on this record as to whether plaintiff’s concern about her ankle was one of the purposes for her subsequent visits. Thus, it cannot be determined at this stage that plaintiff’s relation with Torre did or did not amount to continuous treatment. The existence of these factual questions preclude granting summary judgment at this juncture (see Ugarriza v Schmieder, 46 NY2d 471).

Assuming that continuous treatment did occur in the present case, the appropriate Statute of Limitations must be determined. The initial misdiagnosis occurred in May, 1974, at which time the period for bringing a medical malpractice action was three years (see CPLR 214, subd 6). Effective July 1, 1975, while plaintiff’s treatment was continuing, the period was reduced to two and one-half years (see CPLR 214-a, added L 1975, ch 109, § 6). If section 214-a governs, then plaintiff’s action is time-barred, more than 32 months having elapsed between plaintiff’s last visit and service of summons.

Resolution of this question depends on whether the continuous treatment doctrine delays the action’s accrual or only tolls the running of the Statute of Limitations. If the former, then plaintiff’s action is barred. Although the cases speak of the doctrine in terms of when the action “accrues” (see, e.g., Greene v Greene, 56 NY2d 86, 93-95; Davis v City of New York, 38 NY2d 257, 259, supra; Borgia v City of New York, 12 NY2d 151,155, supra), that term in this context is not strictly accurate. Section 214-a speaks to computing the limitation period in terms of “the act, omission or failure complained of”, not of the entire course of treatment. And, there is a certain illogic in stating that no action is ripe — i.e., it does not “accrue” — until after treatment ends. Continuous treatment has nothing to do with the initial act of negligence. While such treatment itself may be negligent, that would give rise to a different cause of action and would not actually affect the original “act, omission, or failure complained of”. Rather than define the action’s accrual in terms of the doctrine, it is defined in terms of when the original negligent act occurred. Continuous treatment serves simply as a toll — the action may be brought at any time, but the patient will not be compelled to initiate judicial proceedings so long as the physician continues to treat the injury (see Borgia v City of New York, supra).

The action having accrued in 1974, the three-year Statute of Limitations then in effect attached. Torre’s continuing treatment of plaintiff, if any, served to toll the running of the statute, but not to truncate it by imposing the lesser time limit of section 214-a. Thus, whenever treatment of plaintiff is found to have ended, a three-year time period for bringing suit should be imposed.

Finally, it must be determined whether the continuous treatment doctrine can be applied to Laboratories. In essence, this would require imputing Torre’s continuing treatment, if any, to Laboratories, which performed a single, discrete act in May, 1974. Under the circumstances of this case, there is no justification for imputing the continuous treatment.

The policy underlying the continuous treatment doctrine seeks 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 (see Borgia v City of New York, supra). Implicit in the policy is the recognition that the doctor not only is in a position to identify and correct his or her malpractice, but is best placed to do so.

These considerations do not apply to an independent laboratory. In this context, the inquiry necessarily must be directed to the nature of a laboratory’s relationship to the patient (see McQuinn v St. Lawrence County Lab., 28 AD2d 1035,1036, mot for lv to app den 21 NY2d 644). Generally, a laboratory neither has a continuing or other relevant relationship with the patient nor, as an independent contractor, does it act as an agent for the doctor or otherwise act in relevant association with the physician. A laboratory does not have the opportunity to discover an error in a report. Instead, it must rely on the treating physician to discover any diagnostic mistake. Therefore, the policy underlying the continuous treatment doctrine generally will not apply to the independent laboratory.

Here, the record is devoid of any evidence introduced by plaintiff to justify departing from this general rule. Nothing in the record shows that Laboratories was other than an independent contractor with no continuing relation to plaintiff or that there was any agency relation with Torre. Its misdiagnosis occurred in May, 1974. Under the Statute of Limitations then in effect, suit must have been commenced by May, 1977. Plaintiff did not serve Laboratories until August, 1979. Having been brought too late, her action against Laboratories should be dismissed.

Accordingly, the order of the Appellate Division should be modified, with costs to the corporate defendants against plaintiff and to plaintiff against defendant Torre, in accordance with this opinion and, as so modified, affirmed. The question certified should be answered in the negative.

Jasen, J.

(dissenting in part). While I agree that the action against the defendant Laboratories should be dismissed and that the plaintiff’s action is governed by the three-year Statute of Limitations contained in CPLR 214 (subd 6), I would hold that, upon the circumstances disclosed in this record, the plaintiff is precluded, as a matter of law, from invoking in this malpractice action the doctrine of “continuous treatment” (Borgia v City of New York, 12 NY2d 151). Therefore, as to defendant Torre, I vote to reverse and to dismiss plaintiff’s action as barred by the three-year Statute of Limitations.

According to plaintiff’s affidavit in opposition to the defendants’ motion to dismiss the complaint, plaintiff had been under the care of defendant Torre, a dermatologist, for a variety of skin disorders. On May 10, 1974, Torre removed a d.ark mole from plaintiff’s ankle. One week later, plaintiff was advised by Torre that a pathology report based on a specimen from the mole “was negative, and, therefore nothing further had to be done.” (Emphasis supplied.,)

Over the next two years, plaintiff consulted with Torre on at least eight occasions, the last visit apparently being on September 13, 1976. Although these visits were in connection with other ailments, plaintiff complained to Torre about a grayish color and inflammation in the area where the mole had been removed. On each occasion, Torre, after re-examining the ankle, assured plaintiff that there was no reason to worry.

In May of 1978, plaintiff discovered a lump in her groin that was later determined to be a malignant melanoma. In June of 1978; plaintiff underwent further surgery to remove another malignancy from the area where Torre had removed the mole four years earlier. As a result of yet another operation, plaintiff has been left with a variety of permanent injuries, including a severe limp.

The gist of plaintiff’s action is that defendant Torre misdiagnosed her condition and was negligent in removing the mole from her ankle. Defendant Torre was served with the summons and complaint on July 5, 1979. Because the action was commenced more than five years after the initial misdiagnosis and negligent removal of the mole, plaintiff has invoked the “continuous treatment” doctrine so as to toll the running of the applicable three-year limitations period until September 13,1976, the date of her last visit with defendant Torre.

A majority of this court has concluded that questions of fact exist concerning the applicability of the “continuous treatment” doctrine to this case. In support of this conclusion, the majority states,.without citation of authority, that a “complete discharge” of a patient by a physician does not preclude a finding of “continuous treatment” in situations where the discharged patient, without being requested by the physician to do so, makes “a timely return visit * * * to complain about and seek treatment for a matter related to the initial treatment.” (At p 406.) I cannot agree.

The general rule is that an action for malpractice accrues and the Statute of Limitations begins to run on the date of the alleged act of malpractice. In Borgia v City of New York (12 NY2d 151, supra), this court recognized an exception to this rule in instances where “the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint.” (12 NY2d, supra, at p 155 [emphasis supplied].) In Borgia, however, the court readily acknowledged that the “continuous treatment” doctrine had its limitations. Indeed, “continuous treatment” was carefully defined to mean “treatment for the same or related illness or injuries, continuing after the alleged acts of malpractice, not mere continuity of a general physician-patient relationship.” (12 NY2d, supra, at p 157 [emphasis supplied].) Thus, to invoke the doctrine successfully so as to avoid the otherwise applicable Statute of Limitations, a plaintiff must demonstrate: (1) that “treatment” subsequent to the malpractice was, in fact, rendered; and (2) that there was no disruption in the course of treatment from when the malpractice originally occurred.

The continuity aspect of the doctrine was clarified and, in a sense, amplified in Davis v City of New York (38 NY2d 257). In Davis, the decedent was examined by a city cancer detection center in connection with a lump on her breast on February 26, 1968. Decedent was advised at that time “that there was nothing to be concerned about and to return in two years.” (38 NY2d, supra, at p 259.) A year later, in February of 1969, decedent returned to the center for further examination in response to a mail communication from the center. In December of 1969, after being advised by her family physician to consult a surgeon regarding the condition of her breast, decedent telephoned the center and was told by a receptionist that she would be called back for further examination in February or March of 197Q. Subsequently, a letter was sent by the center scheduling an appointment on February 17, 1970. Decedent underwent a radical mastectomy on January 22, 1970, which disclosed the widespread presence of cancer. A notice of claim was served on the city on April 13,1970. In dismissing the action for failing to file a timely notice of claim, this court determined, as a matter of law, that the decedent was not under the “continuous treatment” of the diagnostic center because the medical services rendered by the center were “intermittent rather than continuous”. (38 NY2d, supra, at p 260.) Specifically, it was held that “the medical services rendered by the center in February, 1968 in legal contemplation were discrete and complete. The same was true of any medical service rendered the following February.” (Id.)

In the present case, it can be assumed that the periodic re-examinations of plaintiff’s ankle undertaken by defendant Torre at plaintiff’s behest in the two years following the alleged malpractice constituted “treatment”. Nevertheless, plaintiff, as a matter of law, has failed to demonstrate that this treatment was “continuous”. According to her own affidavit, plaintiff was advised by defendant Torre after the removal and testing of the mole that “nothing further had to be done.” Thus, Torre considered plaintiff’s treatment to be complete and he did not request plaintiff to return for further examinations in connection with the ankle. Rather, it was plaintiff’s complaints which caused Torre to re-examine her ankle during subsequent visits to his office in connection with other ailments. However, the initial “treatment”, out of which arose the alleged acts of malpractice, having been completed, these later examinations were no different than was the treatment rendered to the decedent in Davis, to wit: “discrete and complete” services in legal contemplation and, therefore, “intermittent rather than continuous” in nature.

In view of our decision in Davis, the majority’s reliance on Fonda v Paulsen (46 AD2d 540) for purposes of determining whether there has been continuity in treatment is misplaced. Fonda was decided prior to Davis, and the Fonda court itself acknowledged that “[t]here is no New York case which supplies an adequate definition of the term ‘continuous’ as it applies to treatment in a malpractice case”. (46 AD2d, supra, at p 543.) That jurisprudential gap having since been filled by our decision in Davis, Fonda, to the extent that it is to the contrary, is not an accurate statement of the law in this area.

In my view, whether treatment has been “continuous” for purposes of a medical malpractice action should not be determined from the perspective of a discharged patient’s desire to have his physician conduct a re-examination concerning a matter for which treatment already has been completed. (See, e.g., Florio v Cook, 65 AD2d 548, affd 48 NY2d 792.) Rather, whether there has been continuity in treatment should depend upon the medical services actually rendered. (See Davis v City of New York, supra.) Indeed, the policy underlying the “continuous treatment” doctrine is that it would be “absurd” to require a malpractice victim to interrupt ongoing, corrective treatment by commencing a lawsuit against the negligent physician. (Borgia v City of New York, 12 NY2d 151,156, supra.) That policy, however, is not advanced where, as here, the treatment is completed and the patient is specifically informed that “nothing further had to be done.” Once treatment has ended and the patient has been discharged, later complaints about the same ailment should not serve to revive the expired course of treatment and thereby delay further the commencement of the statutorily prescribed limitations period. Statutes of repose such as CPLR 214 seek to finally put to rest stale claims. The view adopted by the majority today will only frustrate that purpose.

Since the plaintiff has failed to demonstrate, by a sufficient evidentiary showing, that the “continuous treatment” exception should be applied, I would dismiss the action against defendant Torre.

Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur with Chief Judge Cooke; Judge Jasen dissents in part and votes to reverse in a separate opinion.

Order modified, etc. 
      
      . The other defendant laboratories — National Health Laboratories, Inc., and National Health Laboratories, Inc. (a Delaware corporation) — are the successors to Central Health Laboratories, Inc. Defendant Revlon Corporation is the parent company of the Delaware corporation. All four entities will be referred to by the single term “Laboratories”.
     
      
      . Although nothing properly in the record reflects the exact dates of plaintiff’s consultations, this court accepts for the purpose of this appeal that September 13, 1976 was the date of plaintiff’s last visit.
     
      
      . Ju is not a party to this appeal.
     
      
      . Plaintiff later commenced a contract action against Laboratories. Special Term dismissed this as being essentially a malpractice action and, hence, time-barred. The Appellate Division affirmed and plaintiff apparently has abandoned the cause before this court.
     
      
       As to claims for malpractice with respect to acts, omissions and failures occurring after June 30, 1975, CPLR 214-a provides that “the term ‘continuous treatment’ shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient’s condition.” Although not applicable to plaintiff’s action, it is doubtful whether a series of examinations, without more, even constitutes “treatment” under CPLR 214-a.
     