Green v. Varnum

Order unanimously reversed on the law without costs, motions denied and complaint reinstated. Memorandum: Plaintiff was treated by defendants on numerous occasions over several years for frequent infec*907tions, joint and skeletal pain, fatigue, and various neurological disorders. Plaintiff commenced this medical malpractice action, alleging that defendants failed to diagnose her with multiple myeloma. Supreme Court erred in granting defendants’ motions for summary judgment dismissing the complaint as time-barred. Although defendants met their initial burden, plaintiff raised a triable issue of fact whether the Statute of Limitations was tolled by the continuous treatment doctrine (see, CPLR 214-a). Plaintiff submitted proof that some of her return visits to defendants were contemplated by both plaintiff and defendants, and that defendants treated plaintiff for symptoms indicating the existence of multiple myeloma. Thus, plaintiff raised a triable issue of fact whether defendants continuously treated her “for the same illness, injury or condition which gave rise to the said act, omission or failure” (CPLR 214-a). “Merely because defendants did not diagnose plaintiff’s * * * condition as cancer is not a basis to find that they were not treating [her] for it if [her] symptoms were such as to indicate its existence and they nevertheless failed to properly diagnose it” (Hill v Manhattan W. Med. Group-H.I.P., 242 AD2d 255). (Appeal from Order of Supreme Court, Oswego County, Nicholson, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Pine, Hayes and Scudder, JJ.