ECBA Appellate Practice Committee
Civil Case of the Month: February 2018
by Edward J. Markarian, Esq.
In Lohnas v Luzi (__ NY3d __ [2-15-2018 slip opn]), the Court of Appeals majority concluded that questions of fact existed whether the statute of limitations for the plaintiff's medical malpractice action was tolled under the continuous treatment doctrine. Judge Garcia authored the majority opinion. Judges Rivera, Fahey and Feinman joined him. Judge Wilson dissented, joined by Chief Judge DiFiore and Judge Stein.
Procedurally, it is worth noting that Lohnas made it to the Court of Appeals by way of a leave grant by the Appellate Division, Fourth Department. Lohnas is a reminder that, after a loss at the Appellate Division, appellate practitioners should consider whether they should seek leave to appeal from that court. The Appellate Division leave application in Lohnas was particularly appropriate for the following reasons:
1. In cases where the Court of Appeals can grant leave, the Appellate Division may be more likely to defer to the Court of Appeals on the question whether leave should be granted. However, in non-final cases like Lohnas where only the Appellate Division can grant leave, it may be more inclined to do so.
2. It appears that the Second and Fourth Departments were split on an issue decided by Lohnas.
3. A Justice at the Appellate Division dissented.
4. A reversal on statute of limitations grounds would be dispositive and end the litigation.
These combined factors provided strong grounds for an Appellate Division leave grant. The four-votes-to-three split at the Court of Appeals confirms the leave grant was a good one.
Regarding the merits, under CPLR 214-a, the statute of limitations for medical malpractice actions is 2 1/2 years. However, CPLR 214-a also states that "where there is continuous treatment for the same illness, injury or condition which gave rise to the [challenged] act, omission, or failure" (slip opn p 3; quoting CPLR 214-a), the limitations period does not begin to run until the end of such continuous treatment.
The Lohnas majority emphasized the public policy behind the continuous treatment rule, which "seeks to maintain the physician-patient relationship in order for the patient to receive the most efficacious care," and that "implicit in the policy is the recognition that the doctor not only is in a position to identify and correct the malpractice, but is best placed to do so" (slip opn p 3; quoting McDermott v Torre, 56 NY2d 399, 408). Lohnas focused on "intent," holding that summary judgment should not be granted where continuous treatment is alleged if questions of fact exist whether the patient and the physician "intended a continuing course of treatment" (slip opn p 4). On the intent point, the majority noted that the "plaintiff's injury was a chronic, long-term condition which both the plaintiff and defendant understood to require continued care" (slip opn, p 4). Lohnas reaffirmed prior holdings indicating that long gaps in treatment are not dispositive (there was a 30-month treatment gap in Lohnas).
The Lohnas dissent disagreed that the plaintiff's treatment had been continuous. The dissent discussed the legislative history behind the inclusion of the continuous treatment provisions in CPLR 214-a when the statute was amended in 1975, viewing it as suggesting a limited application of the continuous treatment rule. The dissent viewed the physician's direction to the patient to return "as needed," and the 30-month gap in treatment, as indicating that treatment had stopped and was not continuous as a matter of law. The dissent was concerned that "the majority's opinion risks expanding the statute of limitations indefinitely" (slip opn, p 6).