Sharply Divided Court of Appeals Rejects Per Se Rule that a Gap in Treatment Longer than 2 1/2-Year Statute of Limitations Should Bar Application of Continuous Treatment Doctrine

Imagine you hurt your shoulder and it’s just not getting better. You go to the doctor after trying rehab and he says it’s time for surgery. You schedule the date, head in to the hospital, and the doctor fixes your shoulder, or at least he says he did. He tells you to follow up with him over the next year to watch how you recover from the surgery, and you do. He continues to treat you and then, at the end of the year, he says to follow up “as needed.” After 19 months go by, your shoulder starts to hurt again. You go back to the doctor, and he does a second surgery. You see him twice more over the next 20 months when your shoulder hurts.

More than 2 1/2 years pass, and your shoulder still hasn’t gotten better. Although you’re not very happy with the doctor, you don’t have much choice but to go back to him again. But he isn’t doing shoulder surgeries anymore, so he refers you to his partner. Another surgery is needed.

You’ve had it with these guys. It’s been seven years with chronic shoulder pain. Nothing that the doctor has recommended has helped. Not the rehab, the surgeries, or post-op exercises. Fed up, you leave the doctor’s practice and find a new doctor. And a few years later you sue the doctor for malpractice.

That’s what happened to the plaintiff in Lohnas v Luzi (No. 7). It was a bad situation, and brought to the Court of Appeals the issue whether the doctor continuously treated the plaintiff when there was a break in the visits for a longer time than the 2 1/2-year statute of limitations. If it was continuous treatment, Lohnas’ suit could proceed. If not, she sued too late and the case would have to be dismissed.

In a sharply divided 4-3 decision, the Court of Appeals held that questions of fact exist precluding summary judgment on whether the continuous treatment doctrine tolled the statute of limitations for Lohnas’ claim for medical malpractice against Dr. Luzi. The continuous treatment doctrine, the Court noted, ensures that a patient need not break off a relationship with a doctor and sue for malpractice immediately, but can continue to receive treatment for the original condition and then sue up to 2 1/2 years after the doctor’s care has finished. The treatment must indeed be continuous, however, and must be related to the same condition for which the doctor committed the malpractice.

The majority rejected a per se rule that would have held the continuous treatment doctrine inapplicable as a matter of law where there is a gap in treatment for more than the 2 1/2-year statute of limitations. All doctor-patient relationships are not created equal, the Court reasoned, and whether the continuous treatment toll applies depends on the unique facts of each case. Here, there was enough evidence that Lohnas and Dr. Luzi intended a continuous course of treatment for Lohnas’ shoulder injury to send the case to trial. Dr. Luzi was the only doctor she saw for the injury, and she went back to him repeatedly because she still felt pain. The 30-month gap in visits and direction to return on an as-needed basis didn’t make out a defense as a matter of law, the majority held, so the jury should be allowed to decide.

Judge Wilson, writing for the dissent, took the majority to task for confusing a chronic condition with continuous treatment. Comparing this case to the Court’s decision in Massie v Crawford (78 NY2d 516 [1991]), where the Court held that the continuous treatment doctrine couldn’t be invoked for routine regular doctor appointments, Judge Wilson explained that Lohnas’ routine follow ups for the chronic shoulder condition and the gap in treatment of more than 2 1/2 years meant the continuous treatment doctrine couldn’t apply. Indeed, he noted, Dr. Luzi tried different treatments. The alleged malpractice was improperly installing the humeral head in her shoulder during the first surgery that then wore down her rotator cuff. The second surgery was to fix the rotator cuff issue. And then Lohnas only came back after she was pushed into a wall and hurt her shoulder again.

None of these facts, Judge Wilson explained, implicated the policy concerns underlying the continuous treatment doctrine. Lohnas could have easily left the practice, as she later did, and filed suit. She wasn’t getting any treatment at all between the second surgery and the consult for the third, a period of more than 2 1/2 years.

Public policy animated our creation of the continuous treatment doctrine: a doctor engaged in continuous treatment of a patient should not have her efforts chilled by the filing of a lawsuit, nor should the patient undergoing such treatment be required to suffer the burden of suing the physician while still in her care. Where, as here, the treatment is not continuous, no such policy concerns warrant an exception to the limitations period. Indeed, when continuous treatment is absent, public policy, as embodied in the legislature’s selection of a limitations period, cuts the other way: a plaintiff whose surgery and follow- up appointments have been completed, who has been discharged from the hospital, returns to normal life activities, and still suffers “terrible” pain, is on notice that something may be wrong, and is required to take steps to determine whether she has a claim – including by consulting a different doctor if necessary – and file it within the prescribed period (Dissenting Opn, at 5-6).

The majority’s rule, Judge Wilson reasoned, allows what should be prohibited: manipulation of the statute of limitations by returning to a doctor regularly for routine check ups on a chronic condition.

With the 4-3 split Court, only one thing is really clear. No one really knows what is continuous treatment and what isn’t.

The Court of Appeals’ opinion can be found here.

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