Under New York law, a plaintiff who wishes to pursue a medical malpractice claim arising out of a doctor’s negligent failure to diagnose and treat the plaintiff in an appropriate time frame must file a lawsuit within two years and six months of the date of the alleged harm. While certain factors, such as the doctor’s ongoing treatment of the plaintiff will toll the statute of limitations, not all treatment constitutes continuous treatment for purposes of tolling the statute. A New York appellate court recently discussed what treatment is sufficient to toll the statutory period, in a case arising out of alleged ophthalmic malpractice. If you suffered harm due to your physician’s failure to provide you with a proper diagnosis in a timely manner you should consult a trusted Syracuse failure to diagnose malpractice attorney to discuss the circumstances surrounding your harm and what damages you may be able to recover.
Factual Background of the Case
It is alleged that the plaintiff filed a medical malpractice action against the defendant ophthalmic practice and defendant ophthalmologist due to the failure to promptly diagnose and treat the plaintiff’s glaucoma. The alleged malpractice occurred on February 25, 2011, July 15, 2011, and December 6, 2013. The defendants filed a motion to dismiss the plaintiff’s case as time-barred. The trial court denied the defendants’ motion, and the defendants appealed.
Care Under the Continuous Treatment Doctrine
A defendant arguing that a plaintiffs’ medical malpractice lawsuit is barred by the applicable statute of limitations must set forth prima facie evidence that the time in which the plaintiff was required to commence his or her lawsuit has expired. If the defendant establishes the statutory period has passed, the burden shifts to the plaintiff to raise a material issue of fact as to whether the statute of limitations was tolled by the continuous treatment doctrine.
In the subject case, the court found that the defendants presented sufficient evidence to show that the plaintiff filed his lawsuit more than two years and six months after two of the instances of alleged malpractice. Additionally, the court found that the plaintiff failed to raise a triable issue of fact as to whether the statute of limitations was tolled pursuant to the continuous treatment doctrine. Specifically, the court noted that the continuous treatment doctrine tolls the limitation period until the end of a plaintiff’s course of treatment, if: the plaintiff continued to treat with the defendant doctor, for the same condition underlying the medical malpractice, and the treatment was continuous.
The court stated that although the plaintiff underwent a series of surgeries on his eyes that were performed by other doctors, his treatment with the defendants solely consisted of being fitted for contact lenses and did not include any treatment for glaucoma. Thus, the court found that because the plaintiff was not treating for the same condition underlying the alleged malpractice claim, the continuous treatment doctrine did not apply. The court, therefore, issued an order barring the plaintiff from pursuing claims arising out of the dates precluded by the statute of limitations.
Speak with a Trusted Syracuse Failure to Diagnose Malpractice Attorney About Your Case
If you sustained an illness or injury because of your physician’s failure to properly diagnose and treat you, you should speak with a trusted Syracuse failure to diagnose malpractice attorney about your case and whether you may be able to recover compensation for your harm. The experienced failure to diagnose malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers will aggressively pursue the full amount of damages you may be able to recover for your harm. We can be contacted through our form online or at 315-479-9000 to schedule a consultation to discuss your case.