SUPREME COURT OF THE STATE OF NEW YORK. Plaintiff MOTION SEQ. NO. : 001. Defendants. The following papers were read on this application:

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1 S"Q SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK Present: HON. EDWARD G. MCCABE Justice TRlAL/IAS PART NASSAU COUNTY LAURL P ARlSI INDEX NO. : /05 -against- GREGORY A. DEVITA, M.D. and THE PLASTIC SURGERY GROUP, P. Plaintiff MOTION SEQ. NO. : 001 Defendants. The following papers were read on this application: Notice of Motion... Affirmation in Opposition... Reply Affirmation... Motion by defendants to dismiss part of the claim based upon the statute of limitations is denied. This is an action for medical malpractice. Defendant Dr. Gregory Devita is a plastic surgeon who practices through a professional corporation, defendant The Plastic Surgery Group, P.C. On August, 1998, plaintiff Laurel Parisi consulted Dr. Devita complaining that she had

2 Page 2 difficulty breathing through her nose. Upon examining the patient, Dr. Devita concluded that she had a deviated septum and enlarged turbinates. I Rhinoplasty was agreed upon, and at a pre-op visit on August 27, 1998, Dr. Devita discussed the risks of the procedure with Laurel, including the possible need for a second surgery. On September 18, 1998, Dr. Devita performed a rhinoplasty to improve both Laurel' s appearance and her breathing. More specifically, the procedures performed by Dr. Devita included an NSR, or nasoseptal reconstruction, and an SMR, or submucous resection. An SMR involves removing a portion of the septum. 3 As part of the surgery, Dr. Devita also fashioned two "spreader grafts from a section of cartilage which he had removed and placed them on either side of the septum. The purpose of the spreader grafts was to prevent the internal valve of the nose from collapsing and interfering with the patient's breathing. Upon Deposition of Dr. Devita at 14. The turbinates are any of three thin bony plates on the lateral wall of the nasal cavity(see Merriam Webster s Medical Desk Dictionar). Deposition of Dr. Devita at 18. Rhinoplasty, sometimes referred to as a "nose job " is the surgical alteration of the nose to change its shape or improve its function(ww. webmd. com). As noted, the procedure is not without risks. Dr. Devita himself testified that when nasal surgery is performed for cosmetic purposes The structural integrity (ofthe nose J is always affected... (Deposition of Dr. Devita at 67). Deposition of Dr. Devita at 14, 17. Deposition of Dr. Devita at 31.

3 , " Page 3 observing the patient a few days after the surgery, Dr. Devita was "a little disappointed in the cosmetic appearance" of Laura s nose. However, according to Dr. Devita there is always a lot swelling" with the operation which he had performed, and it would take "at least a year to see the result" of the procedure. Following the surgery, Laurel received post-operative treatment from Dr. Devita until October 5, According to Laurel, Dr. Devita told her at one of these follow-up visits that "it could take longer than a year for all the swelling to go down." Laurel further testified at her deposition that Dr. Devita told her that the swelling "would just naturally work itself out" and that she should "wait it OUt."6 Although additional follow-up appointments were scheduled for October 19 October 26, and November 2, 1998, Laurel did not keep any of these scheduled appointments. Nevertheless, between the October 5, 1998 visit and the time that she next saw Dr. Devita, Laurel did not see any other doctors for her condition. Deposition of Dr. Devita at 33. Deposition of Laurel Parisi at 68. Deposition of Laurel Parisi at

4 Page 4 Laurel again consulted Dr. Devita on February At that time Laurel complained that she was unhappy with the appearance of her nose and that she stil had difficulty breathing. Dr. Devita agreed that "the right tip cartilage (wasj more prominent than I would have desired and there was a fullness in the middle third of the nose showing almost a curvature. "g Laurel saw Dr. Devita again in his office on March 18, and on March 25, 2002 he performed a second rhinoplasty. As with the first rhinoplasty, the purpose of this operation was to improve both appearance and function. In the course of the second rhinoplasty, Dr. Devita removed the spreader graft which he had placed on the right side of her nose in the previous surgery. 9 The reason for removal of the spreader graft was to improve the appearance of Laurel' s nose, although there was a risk that it would impede her breathing. Following the March 25 surgery, Dr. Devita continued to treat Laurel, and on October 24, 2003, he performed yet a third rhinoplasty. According to Dr. Devita, the purpose of this procedure was also to improve both appearance and Deposition of Dr. Devita at 38. Deposition of Dr. Devita at 43. Deposition of Dr. Devita at 44.

5 function. I Page 5 I Following the October 24 surgery, Laurel continued to receive treatment from Dr. Devita until February 2, Plaintiff alleges that as a result of these various procedures, she sustained a perforated septum, nasal valve collapse, and other injury to the nose requiring yet a fourth rhinoplasty. This action for medical malpractice and lack of informed consent was commenced by plaintiff on January 7, Plaintiff alleges that Dr. Devita departed from good and accepted medical practice by negligently performing repeated rhinoplasty procedures and by failing to refer her to a revision specialist. Plaintiff also alleges that Dr. Devita failed to properly advise her of the risks of the various rhinoplasties. Defendants move to dismiss the complaint as untimely to the extent that it is based upon treatment which occurred in Defendants assert that the 1998 treatment is barred by the two years and six months statute of limitations provided by CPLR 214-a. Defendants argue that because of the over three year gap in treatment, the treatment from August 24, 1998 to October 5, 1998 is not continuous with the treatment that began in February, Plaintiff argues that II Deposition of Dr. Devita at 61. Since defendants have already served an answer, they are in effect moving for partial summary judgment based upon the statute oflimitations(see Practice Commentary C3212:20).

6 Page 6 the 2002 surgery was part of a continuous course of treatment which commenced in CPLR ~ 214-a provides: An action for medical, dental or podiatric 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... For the purpose of this section, the term "continuous treatment" shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient' s condition. The purpose of the continuous treatment doctrine is to ameliorate the harshness of the rule that a claim for malpractice accrues as of the date of the offending act (Rizk v. Cohen 73 NY2d 98, 104 (1989)). The malpractice accrual rule creates a dilemma for the patient, who must chose between silently accepting continued corrective treatment from the offending physician, with the risk that a malpractice claim will be time-barred, or promptly instituting an action, at the risk of destroying the physician-patient relationship (Id). Essential to the application of the continuous treatment doctrine is a course of treatment established with respect to the particular condition that gives rise to the lawsuit (Plummer v. Health and Hospitals Corp. 98 NY2d 263, 268 (2002)). If the patient is not aware of the need for further treatment, the continuous

7 Page 7 treatment doctrine does not apply because the dilemma it is designed to redress is not implicated (Shumsky v. Eisenstein 96 NY2d 164, (2001)). Similarly, routine examination of a seemingly healthy patient, or visits concerning matters unrelated to the condition giving rise to the malpractice claim, are insufficient to invoke the benefit of the doctrine (Id). Thus, there must be continuous treatment not merely a continuing physician- patient relationship (McDermott v. Torre NY2d (1982)). However, the continuing trust and confidence which underlies the continuous treatment doctrine does not necessarily come to an end upon a patient' last personal visit with the physician (Richardson v. Orentreich 64 NY2d (1985)). Thus, the continuous treatment doctrine will apply when further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during the last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past (Id at ). However treatment is not continuous merely because there has been reliance on a diagnosis and the doctor initiates contact after an extended period with no physician-patient contact and the absence of objective factors indicating that this period had been expressly contemplated by the parties (Rizk v. Cohen 73 NY2d 98, 100 (1989)).

8 Page 8 Because it is the patient who seeks corrective treatment, the determination as to whether continuous treatment exists must focus on the patient(id. at 104). On a motion for summary judgment, it is the proponent' s burden to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (JMD Holding Corp. v. Congress Financial Corp. 4 NY3d 373, 384 (2005)). Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Id). However, if this showing is made, the burden shifts to the party opposing the summary judgment motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986)). Since follow-up appointments were scheduled, both Laurel and Dr. Devita clearly anticipated that her treatment would continue through November 2, However, defendants argue that because of the over three year gap in treatment the subsequent treatment was not "continuous" even though it was for the same condition as was the prior surgery. The court concludes that defendants have established a prima facie case that the 1998 treatment is barred by the statute of limitations. Therefore, the burden shifts to plaintiff to establish a factual issue as

9 Page 9 to whether the continuous treatment doctrine applies. The court notes that it was Laurel who re-established contact with Dr. Devita in February, At that time, Laurel sought corrective treatment from the doctor as opposed to merely ascertaining the state of her condition. Moreover she had not seen any other physician for her condition in the interim. Defendants argue that the long gap in visits itself breaks the continuity of treatment. However, treatment may be continuous, despite a long gap, when the patient is given assurances that the procedure was successfully performed and that symptoms will eventually subside (Rudolph v. Lynn 16 AD3d 261 Dep 2005)). Moreover, a patient who has been told to wait for symptoms to improve has the same dilemma as to whether to risk destroying the relationship as a patient who is actually seeing the doctor. This dilemma may be enhanced in the case of a patient who has undergone rhinoplasty because of the risks inherent in the procedure and because the need for further surgery is frequently anticipated. Laurel did not keep several of her follow-up appointments, as requested by Dr. Devita. However, in view of Dr. Devita s admission that the results of the first procedure could not be observed for at least a year, it is unclear what would have been accomplished by more frequent monitoring. Furthermore, defendant' s advice to "wait it out" provides an objective factor indicating that a prolonged period

10 Page 10 without treatment may have been expressly contemplated by the parties. Issue- finding rather than issue- determination is the court' s function on a motion for summary judgment (Dept. of Social Services v. James M 83 NY2d (1994)). At this stage in this proceeding, the Court must accept Laurel' testimony with regard to the assurances which she claims to have received from Dr. Devita. Clearly, a question of fact is presented as to whether the original treatment was continuing. Accordingly, based upon all of the foregoing, the Defendants ' motion for partial summary judgment on the ground of the expiration of the statute of limitations, is denied. This constitutes the decision and order of this Court. ENTER: Dated: June 26, 2007 Mineola, NY G. MCCABE ENTERED JUN SS/,U COUNTY OUNTY CLERK' S OFFICE

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