By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health
On November 23, 2016, a New York appeals court freed a Madison Avenue Eye Care Ltd. optometrist Paul Kantrowich from a malpractice suit. It was alleged in the suit that Kantrowich negligently failed to diagnose a patient's partial blindness caused by a brain tumor. The brain tumor was found and diagnosed by a different doctor
. The patient, Neil Flaherty, filed the suit too late, the court said, so the complaint against Kantrowich was dismissed.
Three-year Statue Limitations in New York Causes Dismissal of Case.
The New York appellate court said in its decision that Flaherty cannot bring up any visits he had with Kantrowich that occurred before February 2012 because his suit did not meet an exception to the three- year statute of limitations that exists in New York. The five-judge appellate court panel upheld the lower court's September 2015 dismissal.
Kantrowich Did Not Diagnos Flaherty's Brain Tumor.
The case dates back to 2005, when Kantrowich first examined Flaherty. Kantrowich had diagnosed Flaherty as being legally blind in his right eye, with 20/400 vision. For seven years, Flaherty returned to Kantrowich once a year to have his eyes examined as well as to get a prescription for contact lenses.
According to the allegations that were made, during the yearly visits, Kantrowich saw optic neuropathy, or damage, in Flaherty's right eye. Kantrowich also noticed that the nerve was paler than it should have been. In February 2012, Kantrowich referred Flaherty to a neuro-opthamologist. The new physician to whom he was referred said Flaherty's blindness was caused by a meningioma (tumor).
Flaherty's suit against Kantrowich and Madison Avenue Eye Care, Ltd., claimed that Kantrowich should have either diagnosed the tumor earlier or referred him to a neuro-opthamologist sooner.
The appellate court said that Flaherty's claims are subject to New York's three-year statute of limitations because he did not come under the "continued treatment doctrine" which provides an exception to the statute of limitations. The court said that since Kantrowich only performed routine or diagnostic examinations and did not treat the neuropathy, his work cannot be considered a course of treatment.
The appellate court's opinion states: "The measurement of plaintiff's nerve pallor annually did not itself amount tp continuos treatment, or reflect any agreement to monitor the condition, but was part of the routine examination."
The appellate panel stated that the February 2012 date falls within the statute of limitations, but because Flaherty did not argue that the delayed diagnosis worsened his condition or prevented him from getting better, the claim fails.
It must be remembered that this case occurred in New York. Not every state has a statute of limitations for medical malpractice
cases as long as New York's is. For example, Florida's statute of limitations for a medical negligence
case is two years (in most cases). Most states have shorter statutes of limitations, with some as short as a year. If you suspect that you may have been the victim of malpractice, then you need to consult an experienced medical malpractice
and follow-up on this at the earliest possible time. Any attorney
will need time to investigate and follow the appropriate procedural steps required by law. Also, you may need to contact several different attorneys to find one who is interested in taking your case; but again, do this as early as possible.
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Kass, Dani. "NY Eye Doctor
Escapes Suit Over Missed Brain Tumor." Law360. (November 23, 2016.) Web.
About the Author:
George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health
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