Practice point: The plaintiff failed to raise a triable issue as to whether
the statute of limitations was tolled under the continuous treatment
doctrine. The record establishes that the plaintiff and the defendant did not
mutually agree upon or contemplate future consultation or treatment
after August 2007, and that the defendant did not render treatment or examine the
plaintiff after August 2007, approximately three years prior to the
commencement of this action. The plaintiff's telephone conversation with the defendant, during which he allegedly told her that she did not need a
post and core, did not raise a triable issue of fact as to whether she
was undergoing an actual course of treatment. The defendant's disagreement
with the treatment recommendation of a different dentist, and his
failure to render the treatment suggested by the other dentist despite
the plaintiff's numerous attempts to obtain that treatment, did not
raise a triable issue as to whether she was undergoing a continuing course of
treatment with the defendant.
Student note: The continuous treatment doctrine tolls the statute of limitations
for a dental malpractice action when, among other things, the plaintiff
demonstrates that, during the relevant period, he or she continued to seek, and in fact obtained from
the defendant an actual course of treatment, denoted by affirmative and
ongoing conduct by the dentist, such as surgery, therapy, or the
prescription of medications.
Case: Fraumeni v. Oakwood Dental Arts, LLC, NY Slip Op 05042 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Moving for summary judgment in a libel action.
