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Does continuous treatment doctrine apply to hospitals? (Legal Focus on Hospital Law Issues).

CASE ON POINT: Plummet v. NYC Health & Hospital Corp., 2002 WL 1286078 N.E.2d --NY (2002)

ISSUE: One of the ways in which to avoid the applicability of the statute of limitations as a defense is the continuous treatment doctrine. Pursuant to the continuous treatment doctrine, a patient, who has been injured as a result of medical malpractice, can continue to treat with the responsible physician. The statute of limitations begins to run only after the patient terminates treatment with the physician. The rationale behind the doctrine is to afford the initial treating physician the opportunity to complete treatment of the patient and to encourage the patient not to summarily discontinue treatment without affording the physician the opportunity to render appropriate treatment which may correct the condition complained of. In this unusual New York case, a question arose as to whether or not the continuous treatment doctrine was applicable to hospitals as well as physicians.

CASE FACTS: Jermaine Plummer was born on May 21, 1985, at North Central Bronx Hospital, a hospital owned and operated by Health and Hospitals Corporation (HHC). Medical records indicate that the patient was essentially "born lifeless," and that at birth, suffered from respiratory failure, which allegedly caused brain damage affecting learning and speech development, and Erb's Palsy in the left arm. The patient was intubated and brought to the special care nursery/neonatal intensive care unit where the patient remained throughout a ten-day hospitalization. After discharge, the newborn was treated by three different clinics: (a) Montefiore Hospital Medical Center (Montefiore), a facility unrelated to HHC, for the cardiac condition; (b) North Central's Pediatric Rehabilitation Medicine Clinic for Erb's Palsy; and (c) North Central's Pediatric Clinic for routine health care. In September 1998, the child's mother told personnel at the Pediatric Clinic that she intended to relocate to Florida. The clinic advised her to seek medical attention from Miami Children's Hospital and that North Central would forward medical records upon request. The clinic also scheduled an appointment for one month. It was not kept. However, on December 18, 1988, before moving to Florida, the child was seen at the North Central Pediatric Clinic for routine health care and appeared again on March 10, 1989, following exposure to tuberculosis. The child next appeared at North Central Pediatric Clinic for routine health care nine months later, in January 1990, by which time, both the child and his mother had moved back to New York. On October 18, 1990, the child's mother filed a notice of claim on behalf of the infant and herself alleging negligence and medical malpractice in the prenatal and postnatal course of treatment of her son. The plaintiffs served a complaint on November 13, 1991, more specifically directing their allegations toward the alleged obstetrical negligence during delivery. In August 1999, HHC moved for summary judgment dismissing the complaint on the ground that the plaintiff failed to serve notice of her claim within 90 days of the alleged malpractice, a condition precedent to maintaining suit against HHC. The plaintiff argued that notice of the claim, although served five years after the alleged malpractice, was nevertheless timely because it was served while the plaintiff was undergoing "continuous treatment" at North Central for injuries sustained during delivery. The defendant's motion for summary judgment dismissing complaint was granted. The plaintiffs appealed.

COURT'S OPINION: The New York Court of Appeals reversed the judgment of the Supreme Court.

LEGAL COMMENTARY: Although finding the continuous treatment doctrine unavailing to the plaintiffs, the Supreme court denied the defendant's motion on the ground that HHC was equitably estopped from raising the untimeliness of the plaintiffs' notice because it had waited until the ten-year infancy limitations applicable in New York had expired before brining the motion. A divided Appellate Division affirmed the judgment of the lower court confirming that the limitations period could be extended under the continuous treatment doctrine if the infant plaintiff could show that he had been engaged in a continuous course of treatment at the hospital for his "birth injuries" until the notice of claim was filed. The majority of the judges participating in the decision of the New York Appellate Court opined that the patient should not have to interrupt medical treatment of an injury and undermine the physician-patient relationship in order to commence a medical malpractice suit before the statute of limitations bars suit. The doctrine of continuous treatment, however, may toll the 90-day period within which a notice of claim must be filed under applicable New York law. The toll applies when continuous treatment is sought "for the same illness, injury, or condition which gave rise to the said act ..." originally complained of. Essential to the application of the continuous treatment doctrine is "a course to treatment established with respect to the condition that gives rise to the lawsuit."

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Rhode Island law firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.
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Article Details
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Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Article Type:Brief Article
Geographic Code:1USA
Date:Jun 1, 2002
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