The Continuous Treatment Doctrine: A Doctor’s Nightmare
Every jurisdiction maintains a series of statute of limitations which set the amount of time a litigant has to initiate a claim before it expires. Some of the purposes of these statutes is to prompt reasonable diligence by the plaintiff to initiate claims and to prevent exposure for long dormant claims. Attorneys are familiar with the various exceptions that act to toll the limitations period, and establishing when the statutory period begins to run can sometimes lead to protracted litigation in its own right. Here, we focus on the “continuous treatment doctrine” against the backdrop of a particularly scary decision for the medical malpractice community.
The continuous treatment doctrine provides that the statute of limitations does not begin to run in a medical malpractice case until treatment for a particular condition is concluded. This exception is considered by some as the “most successful” means a plaintiff has to combat a strict statute of limitations period. The value of this doctrine to plaintiffs was made evident by decision from the New York Appellate Division in Devadas v. Niksarli.
There, the plaintiff underwent Lasik eye surgery from an ophthalmologist in 2004. On the day of the surgery the plaintiff was given a form listing a variety of possible complications from the surgery and told that the complications might require further procedures. The following day, the plaintiff returned to the doctor’s office and complained of discomfort, which the doctor said was normal and would subside. The issue continued to bother the plaintiff, who returned to the doctor’s office the next month. The doctor told the plaintiff to follow-up as needed and that he could come back any time, which the plaintiff interpreted as a lifetime guarantee of treatment.
For the next three years the patient did not have any contact with the doctor, despite continuing to experience blurriness in his eye. By 2007, the blurriness intensified and the plaintiff returned to the doctor, who performed additional tests. The tests uncovered a genetic eye condition that has no known cure. The plaintiff then filed a malpractice action against the doctor, alleging that the condition was exacerbated by the Lasik surgery.
The case proceeded to trial and a jury awarded the plaintiff a verdict for over $3 million for pain and suffering. The doctor subsequently filed a motion notwithstanding the verdict on the grounds that the plaintiff waited until after the expiration of New York’s 2 ½-year statute of limitations for a medical malpractice claim to file suit. The plaintiff countered that the continuous treatment doctrine operated to toll the statutory period because the doctor had continued to treat him for blurry vision until his most recent visit in 2007.
On appeal, the New York Appellate division determined that the plaintiff met the standard for the continuous treatment doctrine because his 2007 visit was motivated by continued blurriness to his eye, and thus “related” to the original treatment. Moreover, the court found that the plaintiff continued to be under the doctor’s care so long as the Lasik did not result in an appreciable improvement in the plaintiff’s vision. The court thus upheld the jury verdict, despite the fact that more than 33 months had passed between the plaintiff’s last 2004 visit and his visit in 2007.
While it is not always possible to control the statute of limitations “shot clock,” professionals can take steps to limit similar liability concerns by establishing clear deadlines for when a professional relationship begins and ends. By using engagement and disengagement letters, professionals can formally terminate the professional-client relationship, and thereby help to establish a final date for when a professional malpractice claim accrues. In doing so, professionals can better position themselves to take advantage of a statute of limitations defense and seek early dismissal of an action.