Last week an appellate court covering the Bronx and Manhattan split 3-1 ruling in favor of a plaintiff who was late in filing a complaint (against her family physician) more than 2 1/2 years after the alleged negligent conduct resulting in brain surgery and loss of vision. As a result of this expansive interpretation of the continuous treatment rule, this decision will likely be appealed to New York's highest appellate court - the Court of Appeals. Because of this ruling the plaintiff will be allowed to take this case to trial and a jury will decide if her complaint was timely and whether her doctor committed malpractice.

 The patient filed her lawsuit within 2 1/2 years of her being diagnosed with a benign brain tumor called a meningioma. Unfortunately this condition and the craniotomy required to remove it, occurred after the deadline to sue had already expired. As a result, this female plaintiff is now legally blind.  New York has one of the most draconian statute of limitations rule in the U.S. Even the most pro "tort reform" states are not as mean-spirited toward victims of malpractice. Only in New York and six other states can the statute of limitations expire before the victim even knows that there was a medical mishap or even an injury.

 The plaintiff explained that she had been visiting her family care physician repeatedly complaining of severe headaches and blurry vision on 30 visits between 1999 and September 2007. The plaintiff filed her suit in March 2010 which was within 2 1/2 years from the date she learned of her true condition. She didn't know her doctor had misdiagnosed her condition until someone else diagnosed the meningioma in November 2007. 

 The dissenting Justice Tom argued for outright dismissal of the case contending that: 1) there was no evidence of regular appointments; 2) no proof of ongoing treatments for headache related complaints; and, 3) there were gaps in treatment for more than one year. The majority opinion by Justices Moscowitz, Gische and Kapnick responded that these arguments were a "red herring". The majority opinion explained what's necessary to satisfy the continuous treatment doctrine which lengthens the time to sue: "Rather, the  inquiry centers on whether the treated symptoms indicated the presence of the condition that was not properly diagnosed - here, a meningioma that gave rise to plaintiff's severe headaches and partial loss of vision, both of which Dr. Rutkovski understood to treat by among other things, prescribing reading glasses." Lewis v Rutkovsky, 2017 WL 3707298