New York State Court of Claims

New York State Court of Claims

MOWER v. THE STATE OF NEW YORK, #2004-032-043, , Motion No. M-68238


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:
Alfred Thomas Mower, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Stephen J. Maher, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 14, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's proposed claim alleges that between September 6, 2002 and October 23, 2003, medical staff at Clinton Correctional Facility, Great Meadow Correctional Facility, and Oneida Correctional Facility provided inadequate and negligent medical treatment for an eye infection with related corneal abrasion and for Bell's Palsy. The claim contains an extended recitation of facts, the highlights of which are that movant was first presented with symptoms of these conditions on September 6, 2002; that on September 30, 2002 movant filed a grievance about the lack of medical care, requesting an outside consultation; that his condition was properly diagnosed only after he was taken to an outside doctor on October 2, 2002; and that even after correct diagnosis was made, movant was not given the proper medication at the facility on several occasions. Eye surgery was performed on movant in February 2003 at Albany Medical Center, following which his eye has had to be sewn shut permanently. Further appointments were made to investigate the Bell's Palsy, but in September 2003 he was told that there would be no further consultations with Albany Medical Center. After movant was transferred to Oneida Correctional Facility, he was again examined by an outside physician on October 24, 2003. At that time he was told that nothing further could be done for either the eye problem or the Bell's Palsy.
Movant served a notice of intention to file a claim on the Attorney General on December 23, 2003 (Maher affirmation, Exhibit B), and it appears that service of that document was proper in that it was made by certified mail, return receipt requested (id. [photocopy of envelope]). If, as movant asserts, his cause of action accrued on October 23, 2003, then this notice of intention was timely and movant has until October 23, 2005 to file and serve his claim (see, Court of Claims Act §10[3]). In that situation, the instant motion would be unnecessary.
In order for October 23, 2005 to be the effective date of accrual, however, claimant must rely on the doctrine of "continuous treatment" (CPLR 214-a, see generally, McDermott v Torre, 56 NY2d 399 [1982]; Couzens v Augustine, 305 AD2d 1012, 1013 [4th Dept 2003]). The rationale behind this doctrine is that rather than requiring treatment to be interrupted by litigation, it is in the patient's best interest to continue with his or her treating physician who may be in the best position to identify and correct a problem (Nykorchuck v Henriques, 78 NY2d 255, 258 [1991]). Thus, for the doctrine to apply, there must be an ongoing relationship of trust and confidence between the patient and physician (Coyne v Bersani, 61 NY2d 939, 940 [1984]; Fox v Glens Falls Hosp., 129 AD2d 955, 956 [3d Dept 1987]). Application of the doctrine of continuous treatment "[d]oes not change or extend the accrual date but serves only to toll the running of the applicable Statute of Limitations" (Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630, 634 [1991]).
When an inmate is incarcerated in State facilities and treated by State employees during a period of purported medical treatment, that fact alone does not automatically entitle him to the benefit of the continuous treatment doctrine (Ogle v State of New York, 142 AD2d 37 [3d Dept 1988]). On the other hand, the fact that a prisoner's medical or dental treatment is carried out at different facilities, by different personnel, does not necessarily bar application of the continuing treatment doctrine (Kelly v State of New York, 110 AD2d 1062 [4th Dept 1985]; accord Rivera v State of New York, Ct Cl, May 30, 2002 [Claim No. 104786, Motion Nos. M-64726, CM-65039, MacLaw No. 2002-013-022], Patti, J.; 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. ["The continuous treatment doctrine may be properly applied to situations where a prison inmate is treated by physicians in a succession of State facilities"]).
Here, movant's effort to obtain treatment for these two conditions was continual, as was the State's attempt to provide medical attention and treatment of these conditions, either by the medical staff of whatever prison he was assigned to or by outside consultants who were retained and paid by the Department of Correctional Services [DOCS]. No matter how movant characterizes it or what the doctors at Albany Medical Center may have stated,[1] DOCS was in control of claimant's medical treatment at all times. In these circumstances the doctrine of continual treatment applies.
An equally critical question in this case is when the tolling provided by that doctrine terminates. Movant contends that it tolls the running of any time limitation until October 23, 2003, when he was told that there would be no further effort to treat either condition. Counsel for defendant argues that any toll effected by this doctrine ended either on October 2, 2002, when movant states he was told that doctors at Albany Medical Center were "taking over" his care, or on January 6, 2003, when movant was transferred from Clinton Correctional Facility to another prison.
As a general proposition in the Third Department, the toll lasts until the earlier of two events occurs: 1) the conclusion of treatment by the medical provider, or 2) the patient's formally initiating legal process against the medical practitioner. "[W]hen the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint, the 'accrual' comes only at the end of the treatment" (Borgia v City of New York, 12 NY2d 151, 155 [1962],; Couch v County of Suffolk, 296 AD2d 194, 196
[2d Dept 2002]). In the instant case, this point occurred on October 23, 2003, as claimant contends.
The Third Department has recognized that when a patient initiates legal process against the practitioner, he or she has "[c]learly severed any continuing relationship of trust in the physician-patient relationship and ended any 'continuous treatment tolling' at that point" (Toxey v State of New York, 279 AD2d 927, 928-929 [3d Dept 2001], lv denied 96 NY2d 711). Even if the defendant doctor's treatment continues for some time after legal steps have been taken, the toll provided by the doctrine of continuous treatment has ended (Chestnut v State of New York, UID #2001-007-085, Claim No. 102155, Motion No. M-62288 and M-62989, Feb. 13, 2001, Bell, J.; see also Larry v State of New York, UID #2003-015-368, Claim No. 107124, Motion No. M-67391, Dec. 1, 2003, Collins, J.; Jackson v State of New York, UID #2002-019-582, Claim No. NONE, Motion No. M-65793, Nov. 8, 2002, Lebous, J.)
In the instant case, the continued treatment of movant's eye condition and Bell's Palsy terminated on October 23, 2003, when movant was informed that there would be no further effort to treat either condition. His notice of intention was not served until December 23, 2003.[2] As noted above, its service was both timely and proper and preserves movant's right to file and serve his claim until October 23, 2005, two years after the date of accrual. Consequently, this motion is unnecessary, as movant does not need the Court's permission to institute his action.
Claimant's motion is denied as unnecessary.

June 14, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for permission to file an untimely claim
1. Notice of Motion and Supporting Affidavit of Alfred Thomas Mower, pro se, with annexed proposed claim

2. Affirmation in Opposition of Stephen J. Maher, Esq., AAG

3. Movant's Petition to Proceed as a Poor Person

Filed papers: None

[1]Movant does not allege any wrongdoing on the part of Albany Medical Center.
[2] Neither party argues that the tolling provided by continuous treatment terminated on September 30, 2002, when movant initiated an institutional grievance complaining that he was not receiving adequate medical treatment. Research fails to disclose any case which has considered the question of whether filing such a grievance indicates the end of any relationship of trust between the inmate and the medical provider.
The Court notes, however, that in O'Connor v State of New York (UID #2004-019-517, Claim No. 107709, Motion Nos. M-67550, CM-67898, February 5, 2004, Lebous, J.), it was held that the period of continuous treatment would have terminated when the claimant filed a notice of intention in April 2001, although the claimant had filed a grievance complaining of his medical treatment some time earlier, in February 2001. In the Court's view, given the unusual relationship between prison inmates and their medical providers, an inmate's filing a grievance is analogous to someone who is not incarcerated making complaints about their treatment or expressing their displeasure directly to their doctor. Such actions do not necessarily terminate the patient-doctor relationship (see, e.g., Lemmerman v Delmar Dental, P.C., 3 AD3d 771 [3d Dept 2004][holding that the period of continuous treatment included four months during
which the patient returned to her dentist complaining of continued problems with recovery]).