An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure; provided, however, that where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. For the purpose of this section 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. For the purpose of this section the term "foreign object" shall not include a chemical compound, fixation device or prosthetic aid or device.
Manno v. Levi, 94 A.D.2d 556, 465 N.Y.2d 219 (1983), aff'd 62 N.Y.2d 888, 478 N.Y.S.2d 853, 467 N.E.2d 517 (1984). (A cause of action for cancer, allegedly due to DES (diethylstilbestrol) ingested some 12 years prior to suit, accrues at the time of the last exposure, even though the injury became apparent only after passage of several years thereafter. The court deplored "the inequitable result" of applying the Thornton doctrine but held it to be conclusive nevertheless.)
Concha v. Local 1115 Employees Union Welfare Trust Fund, 628 N.Y.S.2d 172, 174 (A.D. 1995). (The statute barred the patient's malpractice action where the patient did not controvert the physician's sworn assertion that he did not examine or treat the patient within the applicable limitations period. The patient conceded in her deposition that she never saw the doctor during the period, and the physician's status as medical director of the defendant hospital did not render him vicariously liable for the alleged negligence of others.)
Young v. New York City Health & Hospitals Corp., 91 N.Y.2d 291, 693 N.E.2d 196 (1998), rev'g 238 A.D.2d 174, 655 N.Y.S.2d 528 (1997). (The plaintiff's periodic visits to the defendant clinic for treatment of unrelated health problems did not establish a course of continuing treatment for her breast condition. The record contained only allegations that the plaintiff was not told of her breast condition at visits to her doctor for unrelated illnesses following her initial breast complaint and mammogram.)
Allende v. New York City Health and Hospitals Corp., 90 N.Y.2d 333, 660 N.Y.S.2d 695, 683 N.E.2d 317, 324 (1997), rev'g 228 A.D.2d 229, 644 N.Y.S.2d 18 (1995). (The court held that the continuous treatment doctrine did not toll the statute of limitations where the plaintiff did not intend to return for treatment to the defendant hospital. The fact that the plaintiff had sought subsequent treatment from other hospitals owned and operated by the defendant did not save plaintiff's claim. The court stated that where continuing treatment was provided by someone other than the allegedly negligent practitioner, there must be an agency or other relevant relationship between the health care providers. The defendant's ownership of both hospitals did not by itself establish such a relationship.)
Nykorchuck v. Henriques, 78 N.Y.2d 255, 573 N.Y.S.2d 439, 577 N.E.2d 1026 (1991). (The Court of Appeals held that the continuous treatment doctrine is inapplicable where it is alleged that the defendant failed to treat the plaintiff for the condition in question. In this case, the plaintiff was treated for endometriosis by the defendant. A lump was noted in one breast, it was diagnosed as noncancerous, and she was advised that it should be closely monitored. Seven years later, another physician diagnosed breast cancer. The following year, the plaintiff commenced this action. The court found that the defendant never engaged in a course of treatment for the breast condition, only for endometriosis.)
Coyne v. Bersani, 61 N.Y.2d 939, 474 N.Y.S.2d 970, 463 N.E.2d 371 (1984). (Submission by the defendant physician, at the plaintiff's request, of reports to other doctors independently consulted by the plaintiff does not evidence the continuing trust and confidence which is one of the predicates for the continuous treatment doctrine in connection with the tolling of the limitation period.)
Ruane v. Niagara Falls Memorial Medical Ctr., 60 N.Y.2d 908, 470 N.Y.S.2d 576, 458 N.E.2d 1253 (1983). (Continuous treatment by the plaintiff's personal physician, who was not employed by the hospital, though affilated with it, will not be attributed to the hospital for the purpose of extending the statute of limitations.)
Cizek v. Mary Imogene Bassett Hosp., 176 A.D.2d 1035, 574 N.Y.S.2d 877 (1991). (The court found nothing in the record to create a fact question regarding continuing treatment of the decedent's prostate where, although diagnostic examinations of the prostate were undertaken, none concluded that the decedent had a condition such that continuous return visits for further treatment were necessary.)
Bradt v. Hamel, 144 A.D.2d 921, 534 N.Y.S.2d 242 (1988). (The plaintiff brought an action against a physician and his former professional corporation. The plaintiff's continuous treatment by the corporation was not sufficient to toll the statute of limitations as to the physician beyond the date of his last treatment of the plaintiff. However, the continuous treatment did toll the statute of limitations in regard to the claim against the corporation.)
Eagleston v. Mount Sinai Medical Ctr., 144 A.D.2d 427, 533 N.Y.S.2d 992 (1988), appeal denied, 74 N.Y.2d 601, 541 N.Y.S.2d 984, 539 N.E.2d 1112 (1989). (A malpractice action brought seven years after an unsuccessful surgery was held to be time-barred, and the defendant's summary judgment motion was granted. The court held that the continuous treatment doctrine did not toll the two and one-half-year statute of limitations where unrelated visits were three years apart. In addition, the plaintiff failed to establish that equitable estoppel or fraud tolled the statute.)
Fleishman v. Eli Lilly & Co., 62 N.Y.2d 888, 478 N.Y.S.2d 853, 467 N.E.2d 517 (1984). (An action against a physician and the manufacturer of DES (Diethylstilbestrol), a drug given to expectant mothers some 25 years ago, brought when the daughter of a patient who took the drug while pregnant developed cancer, was dismissed as time-barred by the statute, even though the injurious effects of the drug did not become known until after the limitation period had lapsed.) (It should be noted, however, that the opinion is ambiguous, arguing strongly in favor of permitting such actions.)
Davis v. A.H. Robins Co., 99 A.D.2d 342, 473 N.Y.S.2d 182 (1984). (An action based on injuries caused by an IUD (Dalkon Shield) accrues, not necessarily on the date of insertion, but on the date of injury resulting from the malfunction of the device. The IUD allegedly caused a tubo-ovarian abscess.)
Reyes v. Bertocchi, 92 A.D.2d 863, 459 N.Y.S.2d 834 (1983). (An action against a physician for inserting an IUD which he should have known could cause an infection, uterus perforation, etc., is not time-barred if brought within three years of the time the plaintiff discovers her injury. The defense contended that the statute begins to run at the time of insertion of the IUD.)
Rodriguez v. Manhattan Medical Group, P.C., 77 N.Y.2d 217, 566 N.Y.S.2d 193, 567 N.E.2d 235 (1990). (The plaintiff made an appointment with the defendants to have an IUD removed two years after its insertion. Neither a physical examination nor x-rays revealed the location of the IUD. The defendants told the plaintiff that she could attempt to conceive without the need for further medical attention. The plaintiff was unsuccessful at becoming pregnant and she eventually began to experience heavy vaginal bleeding. A sonogram revealed the IUD's location in the uterus wall and it was removed surgically. The plaintiff commenced this action approximately one year later. The defendants raised the statute of limitations as a defense since more than five years had passed since they attempted to locate the IUD. The plaintiff contended that under the foreign object exception, the statute of limitations had not begun to run until the IUD's presence was discovered. The Court of Appeals held that a fixation device implanted in a patient's body for a specific treatment purpose is not transformed into a foreign object when a physician retained to remove it fails in his endeavor.)
Ruane v. Niagara Falls Memorial Medical Ctr., 91 A.D.2d 1176, 459 N.Y.S.2d 147 (1983), aff'd 60 N.Y.2d 908, 470 N.Y.S.2d 576, 458 N.E.2d 1253 (1983). (A "foreign object," the court said, "is not the burr hold cover but the germs whose source is ambiguous.")
Soto v. Greenpoint Hosp., 76 A.D.2d 928, 429 N.Y.S.2d 723 (1980). (An action based on the failure of a physician to detect the presence of a small toy lodged in the child's esophagus accrues at the time of such failure, not upon discovery of the object. The "foreign object" exception does not apply where the action is based exclusively on diagnostic judgment or discretion.)
Hoemke v. New York Blood Ctr., 912 F.2d 550 (2d Cir. 1990) , applying New York law. (In 1981, the patient had a blood transfusion and contracted AIDS. In 1988, she sued the hospital and physicians for negligence. Summary judgment was granted for the physicians on statute of limitations grounds. The appellate court affirmed, holding the failure to warn did not amount to fraud.)
DeMille v. Franklin Gen. Hosp., 107 A.D.2d 656, 484 N.Y.S.2d 596 (1985), aff'd 65 N.Y.2d 728, 492 N.Y.S.2d 29, 481 N.E.2d 569 (1985). (The hospital will not be estopped from pleading the statute of limitations on the ground that it had refused to release the medical records and fraudulently concealed the autopsy report, where the plaintiff's attorney was in possession of the necessary records more than a year before the limitation period elapsed.)