NY'S Highest Court Finds For Malpractice Plaintiff - Jury To Decide Whether A 30 Month Gap in Treatment Negates Continuous Treatment Rule
On February 15, 2018, the Court of Appeals ruled in favor of a medical malpractice plaintiff and refused to dismiss a late filed lawsuit saying a jury should decide the issue. The plaintiff was treated by the defendant orthopedist for chronic shoulder problems beginning in 1998. The patient underwent surgery in 1999 and again in 2002. She returned for post op visits until September 2003 but did not return until April 2006 because of continued pain. Suit was filed in September 2008 claiming negligence in the performance of the 1999 surgery.
The Court of Appeals held that the jury, at the time of trial should determine the question of whether there was "ongoing treatment of a medical condition". It further explained that "a gap in treatment longer than the statute of limitations (30 months) is not per se dispositive of defendant's claim that the statute of limitations has expired." Lohnas v Luzi, 2018 WL 889531