Medical Malpractice preceeded legal malpractice (the ancient joke being that you could not have medical malpractice until a lawyer was around to harass a doctor) and continuous treatment begat continuous representation. Here, in Lewis v Rutkovsky 2017 NY Slip Op 06342 Decided on August 29, 2017 Appellate Division, First Department we see both an well-written discussion of continuous treatment and an interesting split between the judges of a First Department bench.
“In this medical malpractice action, plaintiff claimed to have suffered injuries as a result of negligent care she received from defendant Frederick D. Rutkovsky, M.D., plaintiff’s primary care physician, and, vicariously, from defendant LHHN Medical P.C [FN1]. Specifically, plaintiff alleged that Dr. Rutkovsky failed to detect, diagnose, and treat a meningioma (that is, a benign brain tumor) from on or about April 3, 1998 until September 5, 2007. In support of her allegations, plaintiff asserted that Dr. Rutkovsky “ignored” her repeated complaints of migraine headaches, blurred vision, and other related symptoms. Plaintiff ultimately underwent a left frontal parasagittal craniotomy and suffered a loss of vision rendering her legally blind. By complaint dated March 5, 2010, plaintiff commenced this action against LHHN Medical, P.C., and Lenox Hill Community Medical Group, P.C. (together LHHN) and Dr. Rutkovsky, alleging medical malpractice and lack of informed consent.”
“Turning to the merits of defendants’ motions, the record presents issues of fact as to continuous treatment. As is well established, “the continuous treatment doctrine tolls the Statute of Limitations for a medical malpractice action 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” (Cox v Kingsboro Med. Group, 88 NY2d 904, 906  [internal quotation marks omitted]). In addition, “[w]here the malpractice claim is based on an alleged failure to properly diagnose a condition, the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition” (Wilson v Southhampton Urgent Med. Care, P.C., 112 AD3d 499, 500 [1st Dept 2013][internal quotation marks omitted]).
Here, read in the light most favorable to plaintiff, the record contains issues of fact as to whether from March 1999 until at least September 5, 2007 there was continuity of treatment for symptoms — namely, recurring and sometimes severe headaches — that were traceable to plaintiff’s meningioma (see id. at 500-501). If so, the course of treatment would render plaintiff’s action timely, as the statute of limitations would be tolled between March 1999 and September 2007.”
“Our dissenting colleague insists that the continuous treatment doctrine cannot apply, asserting that there was no evidence of regular appointments or ongoing treatment for plaintiff’s headache-related complaints. Putting aside the fact that the assertion mischaracterizes the record — in fact, plaintiff testified that once per month from January 2007 until June 2007 she complained of “extreme” headaches that were not helped by over-the-counter medication — it is a red herring, as it has no bearing on whether the record contains evidence that the continuous treatment doctrine may apply. On the contrary, the case law contains no requirement that a plaintiff have attended “regular” appointments in the sense that the appointments were scheduled for the sole purpose of treating the allegedly misdiagnosed condition. Rather, the inquiry centers on whether the treated symptoms indicated the presence of the condition that was not properly [*4]diagnosed — here, a meningioma that gave rise to plaintiff’s severe headaches and partial loss of vision, both of which Dr. Rutkovsky undertook to treat by, among other things, prescribing reading glasses (see Wilson, 112 AD3d at 500; see also Devadas v Niksarli, 120 AD3d 1000, 1006 [1st Dept 2014][“in determining whether continuous treatment exists, the focus is on whether the patient believed that further treatment was necessary, and whether he sought such treatment”], citing Rizk v Cohen, 73 NY2d 98, 104 ; Simons v Bassett Health Care, 73 AD3d 1252, 1254 [3d Dept 2010]).
The dissent attempts to dismiss the record testimony of once-monthly visits over a six-month period by asserting that plaintiff gave “self-serving” deposition testimony about those visits. There is nothing “self-serving,” in a legal sense, about deposition testimony that favors the party giving it. Rather, testimony is said to be self-serving when it contradicts prior testimony — a situation that does not exist here (see e.g. Capuano v Tishman Const. Corp., 98 AD3d 848, 851 [1st Dept 2012] [an affidavit that does not contradict one’s prior deposition testimony and “provides additional details illuminating” the prior testimony is not considered self-serving]). Whether the testimony is “self-serving” in the sense that it is incredible on its face, and therefore creates no material issue of fact, is an issue for the factfinder to resolve.
Likewise, contrary to the dissent’s characterization, plaintiff’s deposition testimony does not amount to mere “[c]onclusory allegations” in any sense that that phrase is used to defeat a motion for summary judgment. Plaintiff’s deposition testimony was factual, simply reflecting her recollections of how often she visited Dr. Rutkovsky during a certain time period and what she recalled telling him at those times. Applying the word “conclusory” to such testimony is not meaningful in this context; plaintiff was not making a legal conclusion about continuing treatment, but merely testifying to her recollection of events (cf. McGahee v Kennedy, 48 NY2d 832, 834  [summary judgment not defeated by the defendant’s conclusory statements that he was coerced to sign amendment to separation agreement]). Whether this testimony is credible is a matter to be evaluated by the factfinder, not by the court on summary disposition.
In a similar vein, the dissent insists that “plaintiff does not connect these purported visits between January and June 2007 to her documented visit in September 2007, or otherwise raise an issue regarding a continuing course of treatment for headaches.” We disagree with this statement because, as noted above, plaintiff did, in fact, testify that she told Dr. Rutkovsky about her headaches during these once-monthly visits. Specifically, she testified that she was “at his office [once a month] telling him about  headaches [that] were getting more and more extreme” such that she could not get out of bed, and were not alleviated by Ibuprofen. This testimony, read in the light most favorable to plaintiff, is quite sufficient to raise an issue of fact, which is all that the law requires at this stage (see e.g. Chestnut v Bobb-McKoy, 94 AD3d 659, 662 [1st Dept 2012]).”