Shanahan v. Sung , 904 N.Y.S.2d 853 ( 2010 )

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered August 4, 2009 in a medical malpractice action. The order denied the motion of defendants Paul J. Wopperer, M.D. and Paul J. Wopperer, M.D., EC. for summary judgment and granted the cross motion of plaintiffs for leave to amend the complaint.

It is hereby ordered that the order so appealed from is modified on the law by denying the cross motion and as modified the order is affirmed without costs.

Memorandum: Plaintiffs commenced this medical malpractice action alleging, inter alia, that defendant Paul J. Wopperer, M.D. negligently “caused and/or allowed” a metallic fragment to break off from a needle that had been placed in the right breast of Vanessa K. Shanahan (plaintiff) to enable Dr. Wopperer to locate a nonpalpable mass during a biopsy procedure in June 2005. Contrary to the contention of the Wopperer defendants (collectively, defendants), Supreme Court properly denied their motion for summary judgment dismissing the complaint against them inasmuch as defendants failed to establish as a matter of law that the metallic fragment detected in plaintiffs right breast in December 2005 and removed in March 2006 did not result from the June 2005 biopsy. In support of the motion, defendants submitted an affidavit of Dr. Wopperer in which he asserted that the metallic fragment entered plaintiff s right breast prior to the June 2005 procedure. At his deposition, however, Dr. Wopperer testified that he had “no opinion whatsoever” whether the metallic fragment was present in plaintiffs breast before the June 2005 biopsy, and he testified that he was not aware from plaintiffs prior medical history of any manner in which a metal fragment could have become embedded in plaintiffs breast. Defendants also submitted the deposition testimony of a physician who opined that plaintiff “got a metallic density in her breast from the previous surgery,” but was unable to identify which surgery. Notably, Dr. Wopperer also performed a biopsy procedure on plaintiff in May 2004. Although the above-referenced physician testified at her deposition that, based upon her review of plaintiffs MRI films from 2004 and 2005, a “white artifact” that she identified as the metallic fragment was present in plaintiffs breast before the June 2005 biopsy, it should be noted that the physician did not set forth that observation in her December 2005 MRI report despite reviewing the same films at that time. Rather, she stated in her report only that she identified a metallic artifact at the “12:00 position” of the right breast, which was the same position of the mass removed in June 2005. We thus conclude that the burden never shifted to plaintiffs to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Suit v Keller, 6 AD3d 805, 806 [2004]).

We agree with the further contention of defendants, however, that the court abused its discretion in granting plaintiffs’ cross motion for leave to amend the complaint to include a cause of action asserting that the metallic fragment was left in plaintiffs right breast during the May 2004 biopsy performed by Dr. Wopperer, inasmuch as that cause of action is time-barred. We therefore modify the order accordingly. The May 2004 biopsy was performed more than 272 years before plaintiffs commenced this action, and we conclude that the continuous treatment doctrine does not apply to toll the statute of limitations (see CPLR 214-a; see generally Nykorchuck v Henriques, 78 NY2d 255, 258-259 [1991]). CPLR 214-a provides that “[a]n action for medical . . . malpractice must be commenced within two years and six months of the act, omission 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” (emphasis added). Here, the act, omission or failure complained of is leaving a metallic fragment in plaintiffs right breast. Even assuming, arguendo, that the act took place in May 2004, we conclude that the “illness, injury or condition” giving rise to that act was the palpable nodule detected in plaintiffs right breast in March 2004, and it is undisputed that plaintiff sought no further treatment for that condition after the nodule was removed. Thus, the course of treatment related to the condition prompting the May 2004 biopsy—the palpable nodule found in the “11 o’clock área” of plaintiff’s right breast—ended in May 2004 with the removal of that nodule (see Shister v City of New York, 63 AD3d 1032, 1034 [2009]). The detection of a new nodule in a different position of plaintiffs right breast in April 2005 prompted a second course of treatment that continued until January 2006, when Dr. Wopperer last treated plaintiff. We thus conclude that the two biopsies were “discrete and complete” events that cannot be linked by way of the continuous treatment doctrine (Davis v City of New York, 38 NY2d 257, 260 [1975]). Although Dr. Wopperer continued to monitor plaintiff for fibrocystic changes in her breasts after the May 2004 biopsy, it is well established that “neither the mere ‘continuing relation between physician and patient’ nor ‘the continuing nature of a diagnosis’ is sufficient to satisfy the requirements of the doctrine” (Nykorchuck, 78 NY2d at 259).

All concur except Green and Gorski, JJ., who dissent in part and vote to affirm in the following memorandum.