Waring v. Kingston Diagnostic Radiology Ctr., 13 A.D.3d 1024 (N.Y. App. Div. 2004). · Go Syfert
Waring v. Kingston Diagnostic Radiology Ctr., 13 A.D.3d 1024 (N.Y. App. Div. 2004). Cases Citing This Book View Copy Cite
20 citation events (20 in the last 25 years) across 1 distinct court.
Strongest positive: Rich v. Lavelle (nyappdiv, 2023-05-18)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 14 distinct citers. How cited ↗
cited Cited as authority (rule) Rich v. Lavelle
N.Y. App. Div. · 2023 · confidence medium
Ctr., Inc. , 190 AD3d 1212 , 1216 [3d Dept 2021]; Waring v Kingston Diagnostic Radiology Ctr. , 13 AD3d 1024, 1025 [3d Dept 2004]).
discussed Cited as authority (rule) Flint v. Zielinski
N.Y. App. Div. · 2015 · confidence medium
The burden then shifted to plaintiff to show triable issues of fact with respect to the application of the continuous treatment doctrine” (Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1025 [2004]; see Cox v Kingsboro Med.
discussed Cited as authority (rule) Flint v. Zielinski
N.Y. App. Div. · 2015 · confidence medium
The burden then shifted to plaintiff to show triable issues of fact with respect to the application of the continuous treatment doctrine” (Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1025 [2004]; see Cox v Kingsboro Med.
discussed Cited as authority (rule) Dugan v. Troy Pediatrics, LLP
N.Y. App. Div. · 2013 · confidence medium
Here, the record is devoid of any evidence that would support a finding that Walders provided affirmative treatment to plaintiff for a condition related to her foot and Walders’ failure to diagnose or treat the condition in response to the concerns of plaintiffs mother does not, by itself, establish an ongoing course of treatment (see Nykorchuck v Henriques, 78 NY2d at 259 ; Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1026 [2004]).
discussed Cited as authority (rule) Dugan v. Troy Pediatrics, LLP
N.Y. App. Div. · 2013 · confidence medium
Here, the record is devoid of any evidence that would support a finding that Walders provided affirmative treatment to plaintiff for a condition related to her foot and Walders’ failure to diagnose or treat the condition in response to the concerns of plaintiffs mother does not, by itself, establish an ongoing course of treatment (see Nykorchuck v Henriques, 78 NY2d at 259 ; Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1026 [2004]).
discussed Cited as authority (rule) Simons v. Bassett Health Care
N.Y. App. Div. · 2010 · confidence medium
Thus, the burden shifted to plaintiffs to demonstrate triable issues of fact as to whether the continuous treatment doctrine tolled the statute of limitations (see CPLR 214-a; Massie v Crawford, 78 NY2d 516, 519 [1991]; Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1025 [2004]).
discussed Cited as authority (rule) Adams v. Back
N.Y. App. Div. · 2009 · confidence medium
Group, 88 NY2d 904, 906 [1996]; Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1025 [2004]), plaintiff raised a triable issue of fact as to whether the treatment received during this period constituted continuous treatment sufficient to toll the statute of limitations (see Young v New York City Health & Hosps.
discussed Cited as authority (rule) Boyle v. Fox
N.Y. App. Div. · 2008 · confidence medium
Essentially, plaintiffs must proffer evidence supporting an established course of treatment with respect to the condition that gave rise to the lawsuit (see Nykorchuck v Henriques, 78 NY2d 255, 259 [1991]; Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1025-1026 [2004]).
discussed Cited as authority (rule) Kaufmann v. Fulop (2×) also: Cited "see"
N.Y. App. Div. · 2008 · confidence medium
Asimenios established her prima facie entitlement to judgment as a matter of law by demonstrating that the action insofar as asserted against her was commenced after the expiration of the applicable statute of limitations with respect to those claims (see Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1025 [2004]).
cited Cited as authority (rule) Aulita v. Chang
N.Y. App. Div. · 2007 · confidence medium
Group, 88 NY2d 904, 906 [1996]; Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1025 [2004]).
discussed Cited as authority (rule) Zajac v. Wilson
N.Y. App. Div. · 2006 · confidence medium
Defendants met their initial burden on the motion by demonstrating that plaintiffs commenced the action more than 2½ years after the alleged malpractice (see Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1025 [2004]; Couzens v Augustine, 305 AD2d 1012, 1013 [2003]).
cited Cited as authority (rule) Doe v. Community Health Plan
N.Y. App. Div. · 2005 · confidence medium
Plaintiff provided no proof showing the applicability of the continuous treatment doctrine to any purported malpractice (see Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1025 [2004]).
discussed Cited as authority (rule) Cummins v. Marchetti
N.Y. App. Div. · 2005 · confidence medium
Plaintiffs commenced this action more than two years and six months after the alleged misdiagnosis by Quest and Vasilion, and the re-reading of the tissue sample by Vasilion for purposes other than diagnosis or treatment did not implicate the continuous treatment doctrine and toll the statute of limitations with respect to Quest and Vasilion (see McDermott v Torre, 56 NY2d 399, 407-408 [1982]; Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1026 [2004]).
discussed Cited "see" Labshere v. Petroski
N.Y. App. Div. · 2006 · signal: see · confidence high
There are certain recognized exceptions to the limitations’ period, including the continuous treatment doctrine under which the time to “bring a malpractice action is stayed '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’ ” (McDermott v Torre, 56 NY2d 399, 405 [1982], quoting Borgia v City of New York, 12 NY2d 151, 155 [1962]; see Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1025 [2004]).
Retrieving the full opinion text from the archive…
Tracy Waring, Individually and as Administrator of the Estate of Vivian Morris, Also Known as Vivian Krom
v.
Kingston Diagnostic Radiology Center, Also Known as Kingston Diagnostic Center, and Hudson Valley Radiology Associates, P.L.L.C.
Appellate Division of the Supreme Court of the State of New York.
Dec 30, 2004.
13 A.D.3d 1024
Mugglin.
Cited by 15 opinions  |  Published
Mugglin, J.

Appeal from an order of the Supreme Court (Spargo, J.), entered December 2, 2003 in Ulster County, which, inter alia, denied the motion of defendants Hudson Valley Radiology Associates, EL.L.C. and David Ryon for partial summary judgment.

In this medical malpractice action, Supreme Court found that questions of fact exist as to whether the continuous treatment[*1025] toll of the statute of limitations preserves plaintiff’s claims against defendant Hudson Valley Radiology Associates, EL.L.C. (hereinafter HVRA) and its employee, defendant David Ryon. Decedent died of metastatic lung cancer on August 6, 2001. Plaintiff, individually and as administrator of decedent’s estate, commenced this action on March 11, 2002. Ryon, a diagnostic radiologist who never met decedent, read three X rays and three CT scans of decedent’s chest between December 30, 1994 and February 1, 1996, each time reporting his findings to decedent’s primary care physician. In his earlier reports, Ryon suggested that repeat studies be done, but no such recommendation was included in the February 1, 1996 report. For nearly the next four years, Ryon read and reported on a number of radiological studies of decedent which were unrelated to her lungs. In January 2000, because decedent complained of chest pain, she was referred to HVRA for X rays which Ryon read, reporting to decedent’s primary care physician that a small area of increased opacity (when compared with the 1996 study) was found and that there was a change in the lung tissue. Decedent was referred for a biopsy which revealed adenocarcinoma. Plaintiffs claim, in essence, is that decedent had cancer in 1995 and that defendants failed to diagnose, monitor or treat it. Defendants moved for partial summary judgment, arguing that the 272-year statute of limitations found in CPLR 214-a bars any claim for alleged malpractice which occurred prior to August 4, 1999. In opposition, plaintiff argued that the continuous treatment doctrine tolled the statute. We find that doctrine inapplicable to these defendants and therefore reverse the denial of their motion.

We begin by recognizing that defendants established their prima facie right to summary judgment by demonstrating that plaintiff commenced this action more than 27a years after the pre-August 1999 allegedly negligent acts or omissions (see White v Murphy, 277 AD2d 852, 853 [2000]). The burden then shifted to plaintiff to show triable issues of fact with respect to the application of the continuous treatment doctrine (see id. at 853-854). Plaintiff has not met this burden.

Under the continuous treatment doctrine, “the time in which to bring a malpractice action is stayed ‘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’ ” (McDermott v Torre, 56 NY2d 399, 405 [1982], quoting Borgia v City of New York, 12 NY2d 151, 155 [1962]; see CPLR 214-a). Therefore, “essential to the application of the doctrine is that there has been a course of treatment established[*1026] with respect to the condition that gives rise to the lawsuit” (Nykorchuck v Henriques, 78 NY2d 255, 258-259 [1991]). Although “treatment” does not necessarily end upon a patient’s last visit to the doctor, further treatment must be in some way “explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, [or] in conformance with the periodic appointments which characterized the treatment in the immediate past” (Richardson v Orentreich, 64 NY2d 896, 898-899 [1985]). Accordingly, “neither the mere ‘continuing relation between physician and patient’ nor ‘the continuing nature of a diagnosis’ is sufficient to satisfy the requirements of the doctrine” (Nykorchuck v Henriques, supra at 259, quoting McDermott v Torre, supra at 405, 406).

Thus, the radiological studies interpreted by Ryon between February 1, 1996 and January 13, 2000 for decedent’s unrelated health conditions do not establish a course of treatment for her lung condition (see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998]). Accordingly, the issue distills to whether there is evidence of continuous treatment by Ryon for decedent’s lung condition from 1996 to 2000. While the continuous treatment toll may apply to a diagnostician where “periodic diagnostic examinations are prescribed as part of ongoing care for a plaintiff’s existing condition [and] are explicitly anticipated by physician and patient alike” (Elkin v Goodman, 285 AD2d 484, 486 [2001]), here, there is no such evidence. Notably, after numerous scans and X rays revealed that the upper left lobe density in decedent’s lung had remained unchanged as of February 1996, plaintiffs primary care physician did not order subsequent chest exams and decedent visited this doctor only for unrelated health concerns during that subsequent four-year period (see Meath v Mishrick, 68 NY2d 992, 994 [1986]; McDermott v Torre, supra at 403-406; Davis v City of New York, 38 NY2d 257, 259-260 [1975]; Fonda v Paulsen, 46 AD2d 540, 545 [1975]; cf. Traphagen v Packer Hosp., 270 AD2d 777, 778 [2000]). Nevertheless, plaintiff argues that Ryon’s reference in his .2000 report to the 1996 report demonstrates continuous treatment. We disagree. “A comparison of test results suggests adherence to appropriate diagnostic procedure, not a change in the level or nature of trust and confidence between patient and radiologist” (Noack v Symenow, 132 AD2d 965, 966 [1987]). Rather than demonstrating an existing course of treatment, this fact pattern shows “ ‘a resumption of treatment rather than a continuation thereof ” (Fox v Glens Falls Hosp., 129 AD2d 955, 957 [1987], quoting Sherry v Queens Kidney Ctr., 117 AD2d 663, 665 [1986]).

[*1027] Lastly, we are unpersuaded by plaintiff’s argument that Ryon’s failure to make a proper diagnosis itself established an ongoing course of treatment. This “self-contradictory proposition” (Nykorchuck v Henriques, supra at 259) has been categorically rejected by the courts (see Young v New York City Health & Hosps. Corp., supra at 297; Toxey v State of New York, 279 AD2d 927, 928 [2001], lv denied 96 NY2d 711 [2001]; White v Murphy, supra at 854).

Mercure, J.E, Spain and Lahtinen, JJ., concur. Ordered that the order is modified, on the law, with costs, by reversing so much thereof as denied the motion of defendants Hudson Valley Radiology Associates, EL.L.C. and David Ryon; motion granted, partial summary judgment awarded to said defendants and those claims based on acts or omissions of said defendants prior to August 1999 dismissed; and, as so modified, affirmed.