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When Email Is Evidence Of Continuous Treatment

Posted by Andrew J. Barovick | Apr 15, 2016 | 0 Comments

Medical malpractice lawyers know that a lawsuit for medical, dental or podiatric malpractice must be commenced within two years and six months of the malpractice. Barring an exception or two, any case that is brought beyond this time limit will be dismissed.  That is why this limit, memorialized in New York CPLR 214-a, is known as a “statute of limitations.”

A frequently-invoked exception to the statute is the continuous treatment doctrine.   For example, if you were being treated by a doctor who injured you through a medical error, and you did not realize that his error had caused your injury until more than two and one half years after that error had occurred, you could still bring a lawsuit, if you can show that you continued being treated by the errant doctor, for the same general condition,   after  the statute of limitations had expired.  In effect, your two and one-half year time limit would not begin to run until all treatment had stopped.

A medical malpractice victim's best evidence when trying to make use of the continuous treatment doctrine is medical records that comprehensively document the treatment, and the nature of the doctor-patient relationship, in the wake of the incident (or incidents) of malpractice. Recently, however, New York State Supreme Court Justice Alice Schlesinger, who sits in New York County, found that emails between the defendant podiatrist, and the plaintiff patient, were enough to extend the statute of limitations by two days–enough to save the plaintiff's case from being dismissed. The case is  Caesar v. Brookman , 800004/15, NYLJ 1202754584903, at *1 (NY Co. Sup. Ct, 3-30-16).  She interpreted the messages shared between plaintiff and defendant as being in the nature of further medical treatment, since the defendant podiatrist advised plaintiff to “take the antibiotics just in case” certain symptoms were indicative of infection, after plaintiff had written complaining of new symptoms suggestive of a serious infection, that were out of proportion to the reactions that a foreign object in plaintiff's heel–his presenting complaint–would have caused. The defendant's malpractice allowed a MRSA infection to develop in plaintiff's foot, resulting in the need for surgery, which left the plaintiff with atrophied muscles, weight gain, severe levels of coronary plaque, and the need for biweekly visits to a wound care facility for months.

You might not expect a couple of emails to mean much in a medical malpractice case. But here, they made the difference between the life and death of that case. And as a result, the plaintiff has an opportunity for just compensation for his injuries.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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