Patten v. Hamburg OB/GYN Group, P.C.

Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered January 25, 2007 in a medical malpractice action. The order, insofar as appealed from, granted in part defendants’ motion for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from is affirmed without costs. Memorandum: Plaintiff and his wife (decedent) initially commenced this medical malpractice action alleging that defendants were negligent in prescribing estrogen cream to decedent for symptoms of menopause, “although they were aware and should have known” that she had previously been diagnosed with breast cancer. Decedent subsequently died, and plaintiff is now suing defendants individually and as executor of decedent’s estate. Supreme Court properly granted that part of defendants’ motion for summary judgment dismissing the complaint insofar as it concerns medical services rendered prior to February 1, 2001, i.e., more than two years and six months before the commencement of the action (see CPLR 214-a). Decedent came under the treatment of defendant Philip Lauria, M.D. in March 1995, at which time she complained of vaginal dryness and irritation, [1625] and Dr. Lauria prescribed an estrogen cream in June 1995 to relieve decedent’s menopausal symptoms. Dr. Lauria continued to see decedent for annual routine examinations through September 1999, after which he no longer treated decedent because he was on medical disability leave. Decedent subsequently was treated by Donald C. Gregory, M.D., another employee physician of defendant Hamburg OB/GYN Group, EC. (Hamburg). From 1995 until May 2001, Dr. Lauria, Dr. Gregory, and another employee physician of Hamburg routinely prescribed the estrogen cream for decedent’s complaints of vaginal dryness. Decedent was diagnosed with metastatic breast cancer in August 2001, and this action was commenced on August 1, 2003. In support of their motion, defendants established that the statute of limitations began to run, at the latest, in June 1995, when Dr. Lauria first prescribed the estrogen cream. Inasmuch as the action was commenced on August 1, 2003, the action is time-barred with respect to any medical services provided prior to February 1, 2001 (see CPLR 214-a). In opposition, plaintiff failed to raise a triable issue of fact whether the statute of limitations was tolled by the continuous treatment doctrine until May 25, 2001, the date on which Dr. Gregory last prescribed the estrogen cream for decedent (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “[Essential to the application of the [continuous treatment] doctrine is that there has been a course of treatment established with respect to the condition that gives rise to the lawsuit” (Nykorchuck v Henriques, 78 NY2d 255, 258-259 [1991]). Because Dr. Lauria and Dr. Gregory did not treat decedent’s breast cancer and their treatment of decedent consisted of routine, annual gynecological care, the continuous treatment doctrine does not apply (see Trimper v Jones, 37 AD3d 1154 [2007]; Sofia v Jimenez-Rueda, 35 AD3d 1247, 1249 [2006]; Couzens v Augustine, 305 AD2d 1012 [2003]). While arguably there may be a relationship between the recurrence of decedent’s breast cancer and decedent’s use of the estrogen cream (cf. Nykorchuck, 78 NY2d at 259), application of the continuous treatment doctrine nevertheless is unwarranted “because [decedent] could have interrupted [defendants’] services [for treatment of her menopausal symptoms] and switched physicians at any time without jeopardizing her health” (Massie v Crawford, 78 NY2d 516, 520 [1991], rearg denied 79 NY2d 978 [1992]). We reject plaintiff’s further contention that, because Dr. Lauria and Hamburg are “united in interest,” CPLR 203 and the relation back doctrine operate to toll the statute of limita [1626] tions with respect to Dr. Lauria. We note at the outset that CPLR 203 “is not a tolling or extension provision” (Robinson v Village of Lancaster, 187 AD2d 932, 932 [1992]), and thus CPLR 203 does not serve to toll the statute of limitations with respect to Dr. Lauria. Second, plaintiff does not allege that Hamburg was served prior to March 27, 2002, two years and six months from the last day on which Dr. Lauria treated decedent. Thus, “application of [either] the unity of interest rule [or the relation back doctrine] is totally unavailing to save [the] claim against [Dr. Lauria] insofar as it is based upon his own active negligence” (Paciello v Patel, 83 AD2d 73, 76 [1981]). To the extent that the claim is predicated on the contention that Dr. Lauria is vicariously liable for the acts of Dr. Gregory, Hamburg’s employee, we note that plaintiff need not rely on CPLR 203 and the unity of interest rule inasmuch as Hamburg was timely served within two years and six months from the date on which Dr. Gregory last prescribed the estrogen cream for decedent. In any event, that contention also is without merit because “[t]he fact that a ‘physician is a shareholder, officer or employee of a professional service corporation does not make him vicariously liable for the malpractice of another doctor who is an officer, director and employee of the corporation’ ” (Bradt v Hamel, 144 AD2d 921, 922 [1988], quoting Hill v St. Clare’s Hosp., 67 NY2d 72, 79 [1986]). In light of our decision, we need not reach plaintiffs remaining contention. All concur except Gorski, J.P, and Peradotto, J., who dissent in part and vote to modify in accordance with the following memorandum.