New York State Court of Claims

New York State Court of Claims

Williams v. THE STATE OF NEW YORK, #2000-010-004, Claim No. 93197, Motion No. M-59976


Continuous treatment doctrine.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
NISHMAN & SAVITSKYBy: Robert W. Nishman, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 3, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-3 have been read and considered by the Court on defendant's motion to dismiss and oral argument was heard on February 16, 2000:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1

Attorney's Opposing Affirmation and Exhibits with Supplement to Exhibit A......2

Attorney's Reply Affirmation..................................................................................3

Claim No. 93197, served on December 28, 1995 and filed on January 3, 1996, alleges that on May 22, 1993, claimant, an inmate at Sing Sing Correctional Facility, slipped and fell, sustaining injury to his right first finger (Defendant's Ex. C). The claim further alleges that claimant went to sick call approximately 15 times after the accident and complained of pain and inability to move his right finger, "to no avail" and that "claimant was scheduled to be seen by a specialist since July 8, 1993, as well as other occasions, but the Defendant has not followed-up these medical ortho clinic requests, and/or appointments, thus leaving claimant to suffer and causing his injuries to worsen." Thus, claimant asserts that defendant has negligently and with deliberate indifference denied and delayed in providing claimant with appropriate medical care and treatment.

Defendant moves to dismiss the claim as untimely[1] on the ground that the claim does not allege any negligent acts or omission occurring 90 days prior to the filing of the claim. In opposition to the motion, claimant submits his ambulatory health record and argues that, pursuant to the continuous treatment doctrine, the claim is timely (Claimant's Exs. A, C, D).

Generally, a medical malpractice claim occurs on the date of the alleged wrongful act or omission and is governed by a two and a half year statute of limitations (see, Nykorchuck v Henriques, 78 NY2d 255, 257; Smith v Fields, ___AD2d___ [2d Dept Jan. 2000]; CPLR 214-a). An exception exists, however, under the continuous treatment doctrine, which provides that the statute of limitations will not begin to run until the end of the course of treatment "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" (McDermott v Torre, 56 NY2d 399, 405; quoting Borgia v City of New York, 12 NY2d 151, 155). The reasoning behind the doctrine is that the patient is best served when the attending physician remains on a case from onset to cure and " a patient should not be required to interrupt corrective medical treatment by a physician and undermine the continuing trust in the physician-patient relationship in order to ensure the timeliness of a medical malpractice action" (Young v New York City Health & Hosps. Corp., 91 NY2d 291,296).

Upon consideration of the oral argument presented to the Court and the papers submitted, claimant has established a continuous course of treatment and is therefore entitled to a tolling of the statute of limitations under CPLR 214-a (see, Champagnie v State of New York, 224 AD2d 476). Contrary to defendant's argument, claimant's case is unlike Salquerro v State of New York, 212 AD2d 827.

In Salquerro v State of New York, an inmate injured his finger on December 15, 1989 and received medical treatment resulting in a February 22, 1990 recommendation for physical therapy. The inmate was last seen by the physician caring for his finger in May of 1990. More than three years later, on July 22, 1993, the inmate sought leave to serve and file a late claim alleging premature removal of his bandage by a prison nurse in December of 1989 and the failure and refusal to provide more than one physical therapy session following the physician's February 22, 1990 recommendation. The Appellate Division found that the Court of Claims had properly denied claimant's application on the ground that the statute of limitations of two and a half years for a medical malpractice claim had expired. The appellate court rejected claimant's argument that the doctrine of continuous treatment was applicable and that, therefore, the application was timely. The Court held that any care that claimant received after May of 1990 was separate and discrete from the alleged medical malpractice and was not related to the original condition or complaint. The Court noted that the gravamen of the proposed claim was that the State had committed medical malpractice in refusing or failing to establish a course of physical therapy treatment during the time period of February 22, 1990 to June, 1990 and not that claimant had received continuing treatment for his finger.

In the instant case, claimant's ambulatory health record indicates that claimant appeared for treatment of his finger on May 22, 1993 and that treatment continued through December 13, 1995. Moreover, it is apparent from claimant's medical record that treatment continued beyond December 13, 1995. In March 1996, surgery to claimant's finger was performed and post-operative physical therapy was recommended (Claimant's Exs. A, B). The record further indicates that claimant "never had therapy after surgery" (Claimant's Ex. B) and that on May 7, 1997, and September 14, 1999, claimant was seen by a physician regarding his post-operative condition (Claimant's Ex. C). Thus, unlike Salquerro v State of New York, it appears that the treatment claimant received since May 22, 1993 through September 14, 1999 is all related to the same original condition or complaint. Thus, a continuous course of treatment was established and claimant is entitled to a tolling of the statute of limitations under CPLR 214-a.

However, while claimant's motion papers sufficiently established the doctrine's applicability (see, Supplement to Exhibit A), the claim filed on January 3, 1996 fails to allege a continuous course of treatment prior to December 13, 1995. Accordingly, claimant shall, within 45 days of receipt of a file-stamped copy of this Decision and Order, serve and file an amended claim, in accordance with the requirements set forth in Section 11 of the Court of Claims Act. The amended claim shall allege sufficient facts, as set forth in claimant's motion papers, to establish a continuous course of treatment prior to December 13, 1995, and may allege facts beyond that date.

April 3, 2000
White Plains, New York

Judge of the Court of Claims

[1]Claimant concedes that the Notice of Intention was untimely and asserts that this claim does not relate to the Notice of Intention; rather the claim asserts a new and different claim.