Continuous Treatment for Cancer Extends Time to File Medical Malpractice

Continuous Treatment for Cancer Extends Time to File Medical Malpractice

continuous treatment cancer

Misdiagnosing a patient’s illness is one type of medical malpractice. Misdiagnosis can occur in several different ways. These include making an incorrect diagnosis, not making a diagnosis in a timely manner, failing to detect a patient’s serious illness or failure to diagnose a related disease. The Law Offices of Laurence C. Tarowsky can assist you in determining whether you are a victim of a failure to diagnose. It is important to consult an attorney promptly in a failure to diagnose case. A recent court opinion involving kidney cancer shows the need for experienced legal counsel who is familiar with the legal doctrine of continuous treatment.

Laurence C. Tarowsky is a medical malpractice attorney who serves all of New York from his Manhattan office. Laurence C. Tarowsky is well aware of the time limits within which an injured person must file a claim for medical malpractice. Experience in a lawyer is a must. Laurence C. Tarowsky has recovered many millions of dollars for clients since he formed his firm over thirty years ago.

What is the Continuous Treatment Doctrine?

In New York, an injured person must file a medical malpractice action not later than 2 1/2 years after the date the malpractice occurred. But sometimes, the 2 1/2 year deadline can be extended. One way is to consider whether the continuous treatment doctrine applies. Under this legal doctrine, if a doctor is treating a patient and the doctor commits malpractice, then the starting date for the 2 1/2 years does not begin so long as the doctor continues to treat the patient for the same original condition or complaint. Under the doctrine, if the 2 1/2-year extension is about to run, it becomes critical to determine the last date upon which the physician treated the patient for the same condition. When the malpractice is a failure to diagnose, the continuous treatment doctrine applies as long as the patient’s symptoms are indicative of that same condition.

A Recent Example of the Continuous Treatment Doctrine

In 1999, a doctor began treating a patient for high blood pressure, high cholesterol, back pain, insomnia and fatigue. In 2006, the doctor ordered a magnetic resonance imaging (MRI) exam of the patient’s lumbar spine, the lower part of the patient’s backbone. The MRI revealed some degeneration in the spine but also detected a cyst in the patient’s right kidney. The radiologist recommended further evaluation by ultrasound, but the doctor did not refer the patient to a kidney specialist or discuss the MRI findings with the patient. In his view, the existence of the cyst was not abnormal and not associated with the patient’s back pain. This began what the law considers continuous treatment.

The patient continued to suffer from high blood pressure and back pain. In 2011, he went to the emergency room because of pain in his right side. Thus, the continuous treatment continued. Imaging at the hospital revealed the existence of a mass in the right kidney that is characteristic of cancer. The doctor discharged the patient from the hospital and instructed him to follow up with other physicians who could further evaluate the mass.

Within two weeks, a surgeon removed the patient’s right kidney. One week later, another surgeon removed a nodule in the patient’s lung. The patient indeed had kidney cancer. He began chemotherapy.

The doctor admitted the patient to the hospital again in 2012, for more of what the law considers continuous treatment. The patient stayed for a week. The doctor treated him for “failure to thrive” from kidney cancer, but the patient was far gone. The doctor prescribed pain medication and the use of a feeding tube. Later that year, the doctor wrote up a home health certification and treatment plan that referenced the kidney cancer. In July 2012, the doctor wrote a letter stating that the patient suffered from kidney cancer and needed various medical equipment. In August, the patient died from kidney cancer.

Dueling Experts – The decedent’s estate sued the doctor on August 8, 2014. Doctors for the estate and the defense filed affirmations about the case. The defense expert claimed that the malpractice occurred in 2006 when the doctor failed to order the ultrasound, so 2 1/2 years had long since passed. In response, the estate’s expert said that the treatments given by the doctor in 2012 amounted to a continuous treatment that related all the way back to 2006. The trial court dismissed the case, holding that limitations ran in 2013, but the appeals court reversed and sent the case back to the trial court for further proceedings.

The Need for Experienced Legal Counsel

Application of the continuous treatment doctrine allowed the deceased’s estate to have its day in court, to determine whether the doctor committed medical malpractice which resulted in the patient’s death. The case shows the need for experienced medical malpractice counsel. To consult with the Law Offices of Laurence C. Tarowsky, at no charge, visit our contact page or simply call 212-947-2099.

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