The statute of limitations for a medical malpractice claim in New York is 2 1/2 years from the date of the alleged act of malpractice (New York's CPLR section 214-a). The "continuous treatment" doctrine can extend the deadline to sue when there is regular, ongoing treatment by the physician for the same condition or complaints underlying the medical malpractice claim. The deadline to sue does not begin until the treatment with the physician ends.
New York does not have a statute of limitations based upon when the plaintiff can reasonably discover the malpractice. That you were unaware of the malpractice is not a ground for extending the statute of limitations.
The burden of proving that a malpractice claim is barred by the 2 1/2 year statute of limitations is on the defendant. When that burden is met, the burden shifts to the plaintiff to establish an exception to the usual rule.
What is"Continuous Treatment" Between a Doctor and Patient?
"Continuity" requires regular sessions between the doctor and patient for the same medical condition. The best evidence of continuing treatment is the scheduling of future appointments between the patient and doctor.
Continuous medical treatment is when further treatment is anticipated by both physician and patient in the form of a regularly scheduled appointment for the near future or agreed upon during the last visit. The limitations period usually starts to run when the doctor believes the patient's treatment is finished and does not ask the patient to return for additional treatment. Discharge by a physician does not negate the continuous treatment doctrine if the patient timely initiates a return visit to complain about and seek treatment for conditions related to the earlier treatment.
The scheduling of a future appointments with the doctor is strong evidence of continuous treatment, while the commencement of treatment with a different doctor will usually signal the end of continuous treatment. However, a patient's consultation with a new physician does not necessarily establish an intention to terminate a continuing treating relationship with the original physician. Where the patient leaves the last office visit without making another appointment, the continuous treatment doctor may end with the last actual visit.
Continuous medical treatment can consist of a prescription or even a phone call, even if you don't have office visits with your doctor. Let's say your doctor prescribes medication with two renewals over a period of 6 months. The prescription of medication constitutes continuing medical treatment under New York's Education Law, and you have a strong argument that treatment continues until the prescription expires. In some cases, prescription medication can extend the statute of limitations by 6-12 months, or even longer.
Let's say that you call and email your doctor about medical questions through a patient portal used by the doctor's medical group. Courts have held that emails with your doctor may be enought to constitute continuous treatment. Continuous medical treatment is not limited to office visits with your doctor.
When Does Continuing Treatment End?
The issue in most continuous treatment cases is when treatment ended. No particular amount of time must pass before there is a break in the continuity of treatment. Gaps longer than the statute of limitations do not necessarily break the continuity. However, the doctrine of continuous treatment only applies when the doctor and patient perceive the need for further treatment and when the treatment is continuous rather than episodic.
Have Questions about the Continous Treatment Doctrine?
If you have questions, we will be happy to speak with you. You can call us at 845-802-0047.