There are many factors that can go into a case related to what is called tolling the Statute of Limitations in a case where a child was affected by medical negligence or personal injury and later becomes an adult. One is the continuous treatment doctrine. For this to apply the treatment has to be for the same condition from which the medical negligence occurred and also not be intermittent for example one time per year.
In the case decided by the Court of Appeals which is the highest State Court in New York (below that is the Appellate Court, below that is the regular trial Court called the Supreme Court.) Said in the 1995 case of Sean Ganess an infant by his Parents and Natural Guardians, Nelson Ganess et. al. Appellant v. City of New York et. al., Respondents stated that: continuous treatment does not constitute yearly medical checkups.
In this case the Appellant parents were trying to set aside the requirement for first filing a notice of claim (see earlier blog entries) as the parents sought to file the claim 11 years after the fact. The Court of Appeals rules against them and here is quote from the case at length and keep in mind this case is still good law in New York and has positive treatment in other cases:
“Under the continuous treatment doctrine, the time in which a plaintiff must bring an action alleging malpractice 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). As this Court has stated: “[t]he 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. … 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” ( McDermott v Torre, 56 NY2d 399, 408 [citations omitted]). Thus, it is “essential to the application of the doctrine … that there has been a [*736] course of treatment established with respect to the condition that gives rise to the lawsuit. … [N]either the mere ‘continuing relation between physician and patient’ nor ‘the continuing nature of a diagnosis’ is sufficient” ( Nykorchuck v Henriques, 78 NY2d 255, 258 [citations omitted]).

Despite the trial court and Appellate Division writings in the present case, neither individuals suffering from chronic conditions, nor patients being “monitored” for a specific medical condition to ensure that it improves or at least does not deteriorate (as opposed to a general physical examination), are necessarily outside the doctrine (see, Richardson v Orentreich, 64 NY2d 896, 899).

Here, however, plaintiff failed to show that the treatment rendered was continuous for the entire 11-year period now alleged. The last notation on plaintiff’s medical chart is dated September 21, 1983. Plaintiff’s primary physician treating the Erb’s palsy, Dr. Beatrice Kaplan, testified that she last saw plaintiff in August 1983. Plaintiff’s father, in an affidavit submitted in opposition to defendants’ motion for summary judgment, claimed merely that he and his wife continued to take plaintiff to the hospital clinic “once a year” after 1983, yet provided no concrete information as to the dates of such visits or the treatment (if any) rendered. The conclusory assertion of the supposedly continuous nature of plaintiff’s treatment was insufficient, as a matter of law, to rebut the documentary and testimonial evidence to the contrary and thus to establish plaintiff’s entitlement to the doctrine (see,Curcio v Ippolito, 63 NY2d 967).”

Nothing in this blog is intended to be formal legal advice. You are urged to seek the advice of an attorney who understands and does medical malpractice cases. Do not delay in helping your child to obtain the necessary review of their medical records by an expert doctor hired by the attorney you choose. This is only one aspect that can effect or toll the Statute of Limitations in your child’s case. There are also other provisions at law and you should seek the advice of a lawyer who understands the law. Manuel Moses, Esq. 236 West 26th Street Suite 303, New York, New York 10001 (212) 736-2624 x11

The Statute of Limitations for a Child Injured in a Medical Malpractice Action and the Continuous Treatment Doctrine was originally published on Manuel Moses – Personal Injury Attorney NYC