New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2002-013-022, Claim No. 104786, Motion Nos. M-64726, CM-65039


Medical care provided by the Department of Correctional Services to Claimant over a four-year period qualifies as continuous treatment for the application of CPLR 214-a, despite possible prolonged periods in which there were no treatments or complaints, where the malpractice alleged is alleged misdiagnosis and improper treatment of symptoms related to later diagnosed. cancer.

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):
Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On April 24, 2002, oral argument was heard and the following papers were read on Claimant's motion for permission to file an untimely claim and on Defendant's cross-motion to dismiss Claim No. 104786:
  1. Notice of Motion and Supporting Affidavit of Jason M. Kobin, Esq. ("Kobin Affidavit"), with Annexed Exhibits
  1. Notice of Cross-Motion and Supporting Affirmation of Reynolds E., Hahn, Esq. ("Hahn Affirmation"), with Annexed Exhibits and Memorandum of Law
  1. Reply Affidavit of Jason M. Kobin, Esq. ("Kobin Reply")
  1. Filed Papers: Claim; Answer; Amended Answer
This is a medical malpractice action based on allegations that the medical staff at various State correctional institutions failed to properly and timely diagnose and treat Claimant's colon cancer. These allegations are contained in an unsigned document captioned "Claim" submitted in support of the motion for permission to late file (Kobin Affidavit, Exhibit B). I note that this document is identical to the Pro se claim filed in Claim No. 104786 (Kobin Affidavit, Exhibit G). As such, it is technically defective in that the name and address of Claimant's attorney are not recited, and there are more substantive defects as well, which are discussed later. Nevertheless, in order to avoid time consuming rejection and resubmission of the motion papers to correct what are essentially technical defects, I will consider the factual allegations contained in this document to be the same as those that would be contained in a new, properly drafted claim, so that I may consider the motion and cross-motion on the merits.

According to this document, Claimant entered Livingston Correctional Facility on new admission status in July 1995. During the initial interview by medical staff, he complained that he was suffering from abdominal pain and rectal bleeding. He was given Maalox and Motrin by a nurse and, after making other similar complaints during the following days, was examined by a physician on July 24. Tests were conducted and Claimant was informed that his stool sample tested negative for blood. He alleges, however, that he was later told the sample had never been checked to see if it contained blood (Claim, ¶7).[1]

In September 1995, Claimant's symptoms reappeared, and this time he also vomited. He was seen by the facility nurse, who advised him to continue with the Maalox and Motrin and to also use hemorrhoid ointment. The same advice was given by a physician who examined him later that week. No further tests were conducted. Claimant alleges that in January 1996 he was informed by the physician that he did in fact suffer from hemorrhoids and that he should not be concerned about the symptoms. For the following two and one-half years, according to Claimant, he was transferred to a number of different facilities and at each he states that he was told that he suffered from hemorrhoids and received treatment for that condition.

In September 1998 Claimant was transferred to Eastern Correctional Facility. There he made the same complaints of abdominal pain and rectal bleeding and, in addition, asked to be treated for lower back pain and skin rashes. On September 18, the examining physician, Dr. Floresca performed an examination that found no hemorrhoids present, but did reveal blood in the stool; the doctor indicated that a colonoscopy might be needed. Approximately one month later, on October 16, while Claimant was carrying out his work assignment, he experienced "unbearable" abdominal pain and began bleeding profusely from the rectum. He was immediately admitted to the facility hospital and treated for possible colitis. When he was examined again a month later, a colonoscopy was ordered, and it was performed on December 8, 1998. This procedure revealed a "large transverse colon or left colon lesion," and a biopsy performed at the same time revealed it to be cancerous (Claim, ¶23). Claimant underwent surgery at Albany Medical Center on January 12, 1999, at which time a portion of Claimant's bowel was removed and a large tumor mass revealed. He underwent further surgery in March, 1999 for placement of a portacath in order to obtain chemotherapy, and chemotherapy treatments then continued for six months, from March through August 1999.[2]

Claimant's first effort to commence an action in this Court occurred in June 2000 when, appearing pro se, he moved for permission to file a late claim. His motion was denied because the proposed claim was not supported by an affidavit from an expert sufficient to establish the necessary appearance of merit (Decision and Order, Motion No. M-61864, filed Aug. 16, 2000, NeMoyer, J.). [3]

In August 2001, Claimant, apparently still acting pro se, served a notice of intention and filed and served a claim, which was designated Claim No. 104786 (this document is also Exhibit G to the Kobin Affidavit). In its answer, Defendant raised the affirmative defense of untimeliness with sufficient particularity to satisfy the requirements of Court of Claims Act §11(c).[4] In the claim,

Claimant had asserted that it was timely for the following reason:
[T]his claim is being submitted under the Doctrine of Continuous Treatment since Claimant was informed medically after chemotherapy that the end result of Claimant's medical condition is uncertain for at least five (5) years. Therefore, Claimant is subject to undergoing future treatment, testing and screening. [Claim, ¶29.]
Apparently recognizing the weakness of this argument, Claimant, who is now represented by counsel, has moved for permission to file a late claim, asserting that his claim accrued on August 17, 1999, when his chemotherapy concluded. Prior to that time, it is asserted, Claimant had "remained under the continuous care of New York State" (Kobin Affidavit, ¶42). Unfortunately, as noted above, counsel for claimant has failed to submit a proposed claim that reflects this argument as to the date of accrual. As explained, however, to avoid unnecessary delay, I will consider the "proposed claim" will be made up of the factual allegations contained in Claimant's Exhibit B and the legal allegations contained in the attorney's affidavit.

The central question presented here is whether the course of treatment that, Claimant argues, began with his first complaints of rectal bleeding in July 1995 and concluded with the end of chemotherapy in August 1999 qualifies as treatment "for the same illness, injury or condition which gave rise to the said act, omission or failure" on which the claim is based (CPLR 214-a; Rizk v Cohen, 73 NY2d 98). Assuming for the moment that it does, it must first be determined whether other events brought the period of continuous treatment to an end prior to August 1999.

In April 1999, several months before receiving his final chemotherapy treatment, Claimant consulted with the law firm of E. Stewart Jones in Troy, New York, and executed authorizations to have his medical file transmitted to that firm (Hahn Affirmation, Exhibit A). There is a split of authority as to whether consultation with a malpractice attorney marks the end of the relationship of trust and confidence that the continuous treatment doctrine is designed to protect (compare, Guarino v Sharzer, 281 AD2d 188 ["consultation with an attorney to explore one's options does not, of itself, defeat a showing of treatment"], with Schloss v Albany Medical Center, 278 AD2d 614, lv denied 96 NY2d 707 ["such conduct plainly severed whatever relationship of trust and confidence that previously may have been said to exist between plaintiff and defendant"]). The facts presented here are far more analogous to those in Guarino (supra), where the patient continued to receive ongoing treatment for the same condition from the physician, than they are to those in Schloss, (supra), where the patient also simultaneously sought the services of other physicians and did not return for treatment to the defendant hospital for approximately two years, doing so only then on the advice of her new physician. I hold that where, as here, a medical patient contacts an attorney to explore his options but does not pursue litigation and, more critically, does not interrupt the treatment being provided by the defendant, merely consulting with an attorney does not mark the end of the period of continuous treatment.

As to the central issue, Defendant contends that the treatment, including surgery, which was provided to Claimant after he was transferred to Eastern Correctional Facility, was not a continuation of any treatment he received earlier at other facilities (Hahn Affirmation, ¶16). According to Defendant's marshaling of the medical evidence, which was provided by a copy of some portions of Claimant's institutional health record (Kobin Affidavit, Exhibit A), the complaints he made about bowel problems and bloody stools were few and infrequent during 1995 to 1998. It is undisputed that during the months from July to September 1995, while at Livingston Correctional Facility, Claimant made a number of complaints about rectal bleeding and abdominal pain (id., pp. 1-7). The next clear reference to such symptoms contained in the ambulatory health record occurred on June 25, 1997, when Claimant was received at Southport Correctional Facility and "bloody BM's" were noted as a current medical complaint (id., p. 16). The round of treatment and testing that eventually resulted in the diagnosis of the cancer began on September 10, 1998, when Claimant was interviewed upon his arrival at Eastern Correctional Facility (id., p. 28-29). Essentially, Defendant takes the position that treatment of isolated complaints made on three separate occasions, several years apart, cannot constitute "continuous treatment" which would extend the time in which to commence a claim.

Set against this interpretation are Claimant's statements that he made complaints "continuously" and that he was "consistently" treated for hemorrhoids and prescribed a cream for this condition (Kobin Affidavit, Exhibit C [Affidavit of Victor Rivera]) and the simple impossibility of knowing what all of the often scribbled medical notes actually say or whether the medical staff to whom Claimant spoke accurately recorded all of his symptoms and complaints. Significantly complicating this situation is the fact that the complete record of Claimant's medical treatment kept by the Department of Correctional Service (DOCS) is now missing. The only portions of the medical record that are currently available (Kobin Affidavit, Exhibit A) were obtained by Claimant from the Offices of E. Stewart Jones, which had made copies of some portions of the DOCS medical file when Claimant consulted with them in April 1999. It appears undisputed, however, that the records kept at the institutions where Claimant was housed between January 1995 and June 1997 are missing (Hahn Affirmation, ¶26). This period, of course, coincides with the time during which, Defendant would argue, Claimant was making no complaints related to this claim and thus breaking the connection necessary to take advantage of the continuous treatment doctrine. While there is no reason to believe that the loss of the records was deliberate, since it was Defendant who possessed the records and had the responsibility to preserve them, I choose not to reach conclusions detrimental to Claimant from their absence on the record before me.

In any event, Claimant may well have a viable cause of action even if he did not make subsequent complaints of abdominal pain and rectal bleeding during the period from September 1995 until June 1997. The statute itself recognizes that medical malpractice can occur in the context of omissions and failures, as well as actual treatment, and an action can be based on unreasonable delay in properly diagnosing and treating a medical condition, as well as on providing improper treatment (Stanback v State of New York, 163 AD2d 298). Thus, where a patient's regular physician fails to diagnose a serious condition, despite complaints that suggest the presence of that disease, the following interval during which there is no course of treatment for the disease (because, of course, it was not diagnosed) does not break the necessary link to take advantage of the tolling provisions of CPLR 214-a.

In Marun v Coleburn (291 AD2d 340), where there was a two-year hiatus in treatment of a patient's urological condition, the defendant physicians attempted to argue that the continuity of treatment had been broken by their initial misdiagnosis, because they proposed no ongoing course of treatment. This argument was expressly rejected because "[t]he possibility of urethral cancer was indicated by the symptoms that the decedent initially presented and that defendants attempted to treat." As was stated in a similar situation, where the patient also continued to see his doctors for other conditions after the initial misdiagnosis: "Merely because defendants did not diagnose plaintiff's decedent's condition as cancer is not a basis to find that they were not treating him for it if his symptoms were such as to indicate its existence and they nevertheless failed to properly diagnose it" (Hill v Manhattan W. Medical Group -- H.I.P., 242 AD2d 255). It is also possible that, even if diagnosis could not be made at the time the initial symptoms were noted, proper medical procedure would have required periodic followup and testing of such symptoms -- whether or not there were additional complaints -- during the intervening years. Consequently, even if a complete set of medical records supported the facts as they are asserted by Defendant, Claimant would not be foreclosed from relying on the continuous treatment doctrine to establish August 1999 as the date on which this claim accrued.

Finally, Defendant asserts that the treatment -- or lack of treatment -- for this condition that Claimant received at the various correctional facilities to which he was transferred during the period from July 1995 to 1998 cannot be considered "continuous," because treatment at one facility should not be imputed to another. If an inmate held at State facilities is treated by State employees during the period of purported medical treatment, that fact alone does not automatically entitle him to the benefit of the doctrine (Ogle v State of New York, 142 AD2d 37). On the other hand, for a prisoner's medical or dental treatment to be carried out by different personnel and to occur at different facilities does not necessarily bar application of the continuing treatment doctrine (Kelly v State of New York, 110 AD2d 1062; accord Mitchell v State of New York, Ct Cl, Jan. 4, 2001 [Claim No. 103000, Motion No. M-62613, MacLaw No. 2001-028-0506], Sise, J.[5] ["The continuous treatment doctrine may be properly applied to situations where a prison inmate is treated (or necessary treatment omitted) by physicians in a succession of State facilities"]).

In Kelly (supra), the inmate patient sought treatment of an eye condition at three different prisons over a period of two years, and the Fourth Department held that he could take advantage of the continuous treatment doctrine. The Third Department disagreed in Ogle (supra), but permitted the doctrine to apply when the prisoner's transfer was for medical purposes. Defendant contends that the holding in Kelly has been essentially overruled by Allende v New York City Health and Hospitals Corp. (90 NY2d 333), where the Court of Appeals held that the continuous treatment doctrine did not apply because (1) there was no proof that the patient intended to continue treatment and (2) the fact that two of the clinics where she received treatment were owned by the defendant Health and Hospitals Corp. did not provide a sufficient relationship between treatment received at both to establish that it was continuous. The court made it clear, however, that if two physicians, clinics or hospitals had an agency or other relevant relationship with each other with respect to treatment of the injured party, common ownership could be relevant in determining whether treatment was continuous. I do not read this decision as flatly overruling Kelly so much as emphasizing, as did Ogle, that common ownership alone is not enough. Here, however, Claimant's allegations that he complained about a condition that, if investigated further, would have been revealed to be cancer and the continuing nature of his patient/physician status with the State's medical staff provides the necessary relevant relationship between treatments provided (or negligently not provided) at the separate facilities.

Having held that the continuous treatment doctrine applies in this case, and thus that the motion was brought within the CPLR Article 2 statute of limitations, the additional analysis required to consider the motion for permission to late file is easily accomplished. Defendant first became aware that Claimant intended to commence a lawsuit in connection with the alleged delay in diagnosis and treatment in May or June 2000 when he first moved for permission to late file. This, plus the severity of Claimant's condition, provided notice to the State and permitted as much investigation as would have been possible earlier. The State will not be significantly prejudiced if the requested relief were granted, and it does not appear that Claimant has a viable remedy against anyone other than the State. Although Defendant challenges the sufficiency of the medical expert's affidavit that Claimant has submitted in support of the motion, Claimant has succeeded in establishing that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Accordingly, the Court finds the statutorily prescribed factors would weigh in favor of granting Claimant's motion for permission to file a late claim.

The question is whether it is necessary to grant that relief. Based on this analysis, there is no longer any dispute as to whether Claimant may maintain an action based on the State's treatment, or non-treatment, of his rectal bleeding condition from July 1995 to August 1999. There is considerable confusion, however, as to how that action must or should be maintained. The existing claim, Claim No. 104786, contains all of the factual allegations on which the viable claim is based, but it asserts an incorrect date of accrual.[6] The State has moved to dismiss that claim on the grounds of untimeliness. To further confuse matters, Claimant is seeking permission to late file a claim that is not, in its proper form, attached to the motion papers. To cut through the confusion in what seems to be the most practical fashion, I make the following rulings:

Claimant's motion for permission to file an untimely claim is denied as unnecessary. Defendant's cross-motion to dismiss Claim No. 104786 is also denied, because the claim is not untimely. I direct, however, that Claimant serve and file an amended claim that accurately reflects the legal theories, including the theory as to the date of accrual, discussed above. The amended claim is to be filed and served within thirty (30) days of receipt of a file-stamped copy of this Decision and Order.

May 30, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]Nothing in the record discloses the factual basis for this allegation.
  2. [2]The claim also contains allegations that he now suffers from a ventral hernia, which he attributes to an incorrect incision made during the January 1999 surgery. Even if the hernia resulted from medical negligence, it was negligence totally unrelated to the action of the State's physicians and unrelated to the malpractice claim for which continuous treatment is claimed.
  3. [3]I reject Defendant's argument that Judge NeMoyer's decision is absolutely determinative on the issue of whether Claimant should be permitted to file an untimely claim (Hahn Affirmation, ¶¶7, 13). The ground for denying that relief in the earlier motion did not go to the merits of the claim, or the jurisdiction of this Court to hear the claim but, rather, to the adequacy of the motion papers. In order to invoke the doctrine of res judicata or collateral estoppel, it is essential that the original disposition be one on the merits (Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614; Stevens v Kirk, 171 AD2d 587; Siegel, NY Prac §446, at 720 [3d ed]).
  4. [4]The statement reads as follows: "The Court lacks subject matter jurisdiction of the claim in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim as required by Court of Claims Act §10(3) and §11."
  5. [5]This and other Court of Claims decisions may be found on the Court of Claims website at
  6. [6]In addition, that claim includes a totally separate cause of action (see, footnote 2) to which the continuous treatment doctrine does not apply and which, moreover, does not appear to implicate the actions of any State employee.