On February 15, 2018, in Lohnas v. Luzi, M.D., the Court of Appeals affirmed an appellate division holding that plaintiff had raised issues of fact as to whether plaintiff and defendant reasonably intended plaintiff’s uninterrupted reliance upon defendant’s observation, directions, concern, and responsibility for overseeing plaintiff’s progress. The Court noted that the accrual date for the purposes of the statute of limitation was the end date of treatment 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. The Court specifically rejected that a gap in treatment longer than the statute of limitation period itself is dispositive per se on whether the statute of limitation has run. Rather, the controlling issue is whether there is “ongoing treatment of a medical condition.” The Court of Appeals found it unpersuasive that plaintiff was instructed by the physician to return on an “as needed” basis. As aptly pointed out by the dissent, but not shared by the majority opinion, the majority decision now risks expanding the statute of limitations indefinitely, so long as plaintiff can establish that he/she suffers from the same condition or injury and believed he/she had no other option than to continue to see the same physician. The decision opens the door to a further extension of the statute of limitations by way of unilateral manipulation by a plaintiff. Ultimately, in a point abound with sarcasm, the dissent notes that the majority decision leaves open the option that at the conclusion of treatment, the physician could inform the patient in writing to never return thus commencing the statute of limitations period.
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The New York Personal Injury Insurance Defense Law Blog is sponsored by its creator, Peter Balouskas of the law firm of Burke, Scolamiero & Hurd. The blog might be considered a form of attorney advertising in accordance with New York rules that went into effect February 1, 2007 (22 NYCRR 1200.1, et. seq.) Throughout the blog as it develops, you may see examples of cases we have handled, or cases from others that are used for illustrative purposes. Since all cases are different, and legal authority may change from year to year, it is important to remember that prior results in any particular case do not guarantee or predict similar outcomes with respect to any future matter, including yours, in which any lawyer or law firm may be retained. Some of the commentary may be become outdated. Some might be a minority opinion, or simply wrong. No reader should consider this site (or any other) to be authoritative, and if a legal issue is presented, the reader should contact an attorney of his or her own choosing for advice. Finally, we are not responsible for the comments of others that may be added to this site.
