Opinion
No. 00 Civ. 6312 (JSM).
Filed: September 26, 2001.
For Plaintiff: Martin L. Brothers 250 West 57th Street New York, New York 10107.
For Defendants: William P. Brady Martin, Clearwater Bell 220 East 42nd Street New York, New York 10017.
MEMORANDUM OPINION AND ORDER
Ameerah Haq ("Plaintiff") brings this diversity action for medical malpractice against New York Presbyterian Hospital Cornell Medical Center ("New York Hospital") and Leonard N. Girardi M.D. (collectively "Defendants"). Defendants move for summary judgment on the basis that Plaintiff's claim is time barred. For the reasons set forth below, Defendants' motion is granted and the complaint is dismissed.
BACKGROUND
Plaintiff is a citizen of the People's Republic of Bangladesh currently residing in the County, City and State of New York as an employee of the United Nations. She was born in 1950 in Bangladesh and has a medical history of chronic coronary disease and hypercholesterolemia.
In January 1997, Plaintiff suffered a heart attack while in Malaysia on business for the United Nations. It was discovered that she suffered from an aortic aneurysm and she returned to the United States for treatment. On July 30, 1997, Plaintiff was referred to Dr. Wayne Isom at New York Hospital for a consultation to evaluate surgical options for her aortic aneurysm. At that consultation, it was decided that Dr. Leonard Girardi would perform surgery to repair Plaintiff's ascending aortic aneurysm, including a triple vessel bypass procedure to alleviate her chronic coronary disease. On August 18, 1997, Dr. Girardi performed the surgery on Plaintiff at New York Hospital and she was discharged from the hospital on August 25, 1997. Plaintiff was examined by Dr. Girardi at his post-operative care clinic on September 12, 1997. After the examination, Plaintiff was discharged into the care of cardiologists Dr. Claire Hochreiter and Dr. Edmund Herrold. Dr. Girardi and Dr. Herrold are both employees of Cornell Medical College. Plaintiff did not have additional appointments scheduled with Dr. Girardi at that time. However, she returned to Dr. Girardi's office on October 6, 1997, complaining of drainage at the right femoral incision site. She was treated by a nurse practitioner and did not interact with Dr. Girardi.
After October 6, 1997, Plaintiff continued to be treated by her cardiologists. On August 13, 1999, Plaintiff was admitted to New York Hospital with cardiac arrhythmia. According to Plaintiff, Dr. Girardi visited her in the hospital during that stay but hospital records do not indicate that he treated her at that time. Dr. Herrold, the admitting and treating physician for the August 1999 hospitalization, stated in his deposition that he did not consult Dr. Girardi about her treatment in 1999.
On February 17, 2000, Plaintiff was admitted to New York Hospital after several weeks of complaints of fatigue and nausea. It was determined that Plaintiff had developed a coronary artery to coronary vein fistula. On February 24, 2000, her case was presented at the Hospital's bi-monthly cardiac catheterization conference, which was attended by a group of physicians including Dr. Girardi and Dr. Herrold. A decision was made to perform a cardiac embolization procedure to treat the fistula. Although Dr. Herrold had also consulted privately with Dr. Girardi regarding Plaintiff's condition, Dr. Girardi was not involved in the embolization procedure, which was performed on February 29, 2000. Plaintiff was discharged from New York Hospital on March 3, 2000, into the care of Dr. Herrold and she did not see or contact Dr. Girardi again.
According to Dr. Herrold, a fistula is a tract or channel between a high pressure area and a low pressure area.
Plaintiff instituted this action on August 23, 2000, alleging that Dr. Girardi negligently grafted a segment of Plaintiff's greater saphenous vein onto a right coronary vein instead of her right coronary artery during the 1997 surgery, effectively causing a fistula that shunted the affected flow blood from her heart into a self-contained systemic loop that sealed off the flow of blood from its normal course through the circulatory system. The Complaint further alleges that Dr. Girardi's negligence aggravated the damage to Plaintiff's heart and exposed her to subsequent life-threatening surgical procedures. Finally, the Complaint seeks to hold New York Hospital vicariously liable as the employer of Dr. Girardi. Defendants now move for summary judgment on the grounds that the action is time-barred by the statute of limitations for medical malpractice actions pursuant to N.Y. C.P.L.R. § 214-a. Plaintiff argues that the statute of limitations should be tolled in this case by the continuous treatment doctrine.
DISCUSSION
The parties agree that New York law governs this action. Therefore there is no dispute that the New York statute of limitations for medical malpractice, N.Y. C.P.L.R. § 214-a, applies to this case. Section 214-a provides in relevant part:
[a]n action in medical . . . malpractice must be commenced within two years and six months of the act, or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure.
Continuous treatment tolls the statute of limitations "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, 437 N.E.2d 1108, 1110 (N.Y. 1982) (citations omitted). The Complaint alleges that the claim arose during the August 18, 1997 surgery performed by Dr. Girardi. Plaintiff's last visit to Dr. Girardi's office occurred on October 6, 1997. Thus, if there is no basis to find that there was continuous treatment of Plaintiff relating to the August 18, 1997 surgery after the October 6, 1997 visit, Plaintiff should have filed her Complaint prior to April 6, 2000 rather than on August 23, 2000.
The limitations period "may begin to run once a hospital or physician considers the patient's treatment to be completed and does not request the patient to return for further examination." McDermott, 437 N.E.2d at 1111 (citations omitted). While the continuous treatment doctrine does not include patient-initiated visits simply to have a condition checked, it does include timely visits to a doctor to complain about and seek treatment for a matter related to the initial treatment. See id. Thus only patient-initiated visits to seek additional or corrective treatment for the same medical condition are within the scope of the continuous treatment doctrine.
The New York Court of Appeals has explained that:
The policy underlying the continuous treatment doctrine seeks to maintain the physician-patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure. Implicit in the policy is the recognition that the doctor not only is in a position to identify and correct his or her malpractice, but is best placed to do so.Id. at 1112. The basic premise of the doctrine is that a patient should not have to bring a suit against a doctor who is still attempting to provide treatment for the original medical condition for which the patient sought treatment. See Young v. New York City Health Hosps. Corp., 693 N.E.2d 196, 199 (N Y 1998). For instance, a patient who is recovering from surgery "could not reasonably be expected to terminate aftercare and sue for malpractice while the physician was still checking the wounds and monitoring the healing process." Massie v. Crawford, 583 N.E.2d 935, 938 (N.Y. 1991).
Plaintiff argues that the treatment she received from her cardiologist, Dr. Herrold, after her surgery should be imputed to Dr. Girardi because of the "nexus between the two doctors. As a result, Plaintiff contends that the "follow-up" care administered by Dr. Herrold constituted continuous treatment for the original condition until February 23, 2000, when she discovered the possibility of Dr. Girardi's negligence during the surgery. Under this theory, her action would be timely. However, the patient's visits to Dr. Herrold do not fall within the scope of the continuous treatment doctrine. Furthermore, the nexus between the doctors is not strong enough to sustain the application of the toll.
At the time Plaintiff was referred to Dr. Herrold to monitor her heart condition, she had suffered from heart problems for many years. At her deposition, she explained that her first heart surgery was in 1972 and that her mother, father, sister, and brother all suffer from heart disease. (Brady Aff. Ex. D at 19, 37.) Thus, it is not surprising that someone with a long history of heart problems would regularly visit a cardiologist, especially after undergoing major heart surgery. As Dr. Herrold stated in his deposition:
Coronary artery bypass surgery is a palliation, it is not a cure. She still has coronary artery disease. I can expect her to develop coronary artery disease in her grafts. She had a strong family history of coronary artery disease and comes from a part of the world that is known to have severe coronary artery disease, I expected to be very actively involved in her care.
(Brady Aff. Ex. K at 11.) Dr. Herrold described a course of treatment that stemmed not just from the surgery that Dr. Girardi performed, but also from Plaintiff's long-standing heart condition. "A patient's continuing general relationship with a physician, or routine, periodic health examinations will not satisfy the doctrine's requirement of 'continuous treatment' of the condition upon which the allegations of medical malpractice are predicated." Young, 693 N.E.2d at 199 (citations omitted). Thus, Dr. Herrold's continuing relationship with Plaintiff would not toll the statute of limitations.
Plaintiff emphasizes that Dr. Herrold discovered a new souffle or murmur when examining Plaintiff on September 23, 1997. She contends that this new murmur was caused by Dr. Girardi's alleged negligence during the August 1997 surgery and was related to her heart problems in February 2000. Thus, Plaintiff argues that Dr. Herrold's monitoring of the murmur transformed her general relationship with her cardiologist into continuing care related to the 1997 surgery. However, Plaintiff offers no evidence, other than her allegation in the Complaint, that the murmur was in any way related to the surgery. Indeed, Dr. Herrold testified in his deposition that he was initially concerned that the murmur signified a "disruption of the aortic aneurysm repair." (Brady Aff. Ex. K at 15.) However, after performing a CT scan and echocardiogram, he "found that . . . the aneurysm repair was intact . . . and concluded that [he] was hearing the turbulent flow of her internal mammary artery graft." (Brady Aff. Ex. K at 15-16.) Although Dr. Herrold eventually came to believe that the murmur was actually caused by the formation of a fistula tract, he also testified that he did not believe that the murmur was caused by a mis-connection of the saphenous vein to another vein rather than to the right coronary artery during the 1997 surgery. (Brady Aff. Ex. K at 20.) According to the transcript of Dr. Herrold's deposition, Dr. Herrold recalls informing Plaintiff that he had considered the possibility that the murmur and fistula were related to the 1997 surgery, but that he further informed her that he dismissed those possibilities. (Brady Aff. Ex. K at 17, 49.) He reported that he raised the possibility to keep her fully informed of his "logic as to what [was] and [was] not reasonable to pursue." (Brady Aff. Ex. K at 51.) Plaintiff has not presented any evidence to support her allegations that the murmur was a result of the 1997 surgery and, in any event, neither Plaintiff nor Dr. Herrold believed that she was being treated for any condition that was related to her prior surgery. Thus, she has not raised a genuine issue of fact precluding summary judgment because the evidence would not allow a reasonable jury to find that her treatment by Dr. Herrold was a continuation of the treatment performed by Dr. Girardi. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986).
Even if Dr. Herrold's treatment of Plaintiff was considered related to the surgery, that treatment could not be imputed to Dr. Girardi to toll the statute of limitations without some showing of an agency or other relevant relationship between the two doctors. See Meath v. Mishrick, 503 N.E.2d 115, 117 (N Y 1986) (citing McDermott v. Torre, 437 N.E.2d 1108 (N.Y. 1982)) Plaintiff argues that there is a substantial association or nexus between the doctors because they are both employed by Cornell University Medical College; they both maintain offices in their respective departments of New York Hospital; their specialties entail close monitoring of patients under their joint care; and they refer patients to each other. She contends that this nexus is strong enough to extend the limitations period to include the care received from Dr. Herrold. See Lawyer v. Albany Med. Ctr. Hosp. Inc., 668 N.Y.S.2d 244, 246 (App.Div. 1998); Ganapolskaya v. V.I.P. Med. Assocs., 644 N.Y.S.2d 735, 737 (App.Div. 1996).
The cases that Plaintiff relies upon in support of this argument are distinguishable. In Lawyer, two physicians treated the plaintiff throughout her pregnancy and shared office space. In Ganapolskaya, the plaintiff was sent to a hospital by her physician from his office while she was unconscious to receive treatment for a condition resulting from a procedure that he had performed. Finding that "defendants' treatment had not been completed and that the transfer was for plaintiff to undergo further medical procedures to correct defendants' alleged malpractice and to take plaintiff out of danger," 644 N.Y.S.2d at 737, the court held that the statute of limitations was tolled for the seven days that she was in the hospital recovering from the unsuccessful procedure performed at the doctor's office.
Dr. Herrold and Dr. Girardi do not share office space and Plaintiff was not sent to Dr. Herrold for corrective care. These doctors are colleagues that work in the same hospital and the fact that they both care for patients with heart problems results in consultations and referrals. Such a relationship does not constitute a sufficient nexus to impute Dr. Herrold's care to Dr. Girardi in order to toll the statute of limitations.
Plaintiff also argues that Dr. Girardi's participation in her February 2000 cardiac catheterization conference and his consultation with Dr. Herrold during that time constituted continuing treatment related to the 1997 surgery. First, the record indicates that the conference was attended by many doctors and several patients were discussed. (Brady Aff. Ex. H at 25-27.) Thus, Dr. Girardi's attendance would not be enough to constitute continuing treatment. Dr. Herrold's consultation with Dr. Girardi about Plaintiff's condition in February 2000 also does not fit within the doctrine of continuous treatment as described above. According to Dr. Girardi, he was consulted at that time to help come up with a solution to the problem of Plaintiff's recently diagnosed coronary fistula. Although the fistula was another heart problem, there is no evidence that it was related to the 1997 surgery other than the allegations in the Complaint. Therefore, Dr. Girardi's consultation regarding the fistula represented treatment for a new condition and not continuing treatment for Plaintiff's aortic aneurysm in 1997.
Although the Complaint makes a claim against New York Hospital, Plaintiff did not address the hospital's liability in her brief in opposition to Defendants' motion. As Defendants argue in their brief, the claim is barred by the statute of limitations. Furthermore, Dr. Girardi is not an employee of New York Hospital and therefore the hospital can not be held vicariously liable for treatment administered by a private attending physician, especially when Plaintiff sought the services of specific doctors and not the services of the hospital itself. See Hill v. St. Clare's Hosp., 490 N.E.2d 823, 827 (N Y 1986). Thus, Plaintiff's claim against the hospital fails.
Finally, Plaintiff argues that Defendants should be estopped from invoking the statute of limitations because Plaintiff was deliberately misled about her murmur. "In order to invoke the doctrine [of equitable estoppel], plaintiff must assert a claim of fraudulent concealment of the malpractice and justifiable reliance upon defendant's intentional misrepresentation which prevented the plaintiff from discovering the malpractice or induced him to refrain from bringing suit." Krol v. Valone, 437 N.Y.S.2d 485, 486 (App.Div. 1981) (citing Immediate v. St. John's Queens Hosp., 397 N.E.2d 385 (N.Y. 1979); Simcuski v. Saeli, 377 N.E.2d 713, 716 (N.Y. 1978); Renda v. Frazer, 429 N.Y.S.2d 944 (App. Div. 1980)). Plaintiff made no such allegations in her Complaint and even admits that:
It would be overstating the case to accuse Dr. Girardi or Dr. Herrold of deliberately misrepresenting a fact to the plaintiff, or of deliberately deceiving her, as they probably had no such intention. On the other hand, it would also be understating the case to say that they had adwuately (sic) apprised (sic) the plaintiff of the possible causes of the souffle murmur that had been detected shortly after the 1997 surgery.
(Pl. Mem. L. at 6.) Even if this allegation had appeared in the Complaint, Plaintiff does not argue that there was any fraudulent concealment in the case. Therefore, her belief that she did not receive complete information about all possible causes of her murmur is not sufficient to invoke the doctrine of equitable estoppel to toll the statute of limitations.
CONCLUSION
For the reasons set forth above, Defendants' motion for summary judgment is granted and the complaint is dismissed as time-barred.
SO ORDERED.
Dated: New York, New York September 25, 2001