In Caesar v. Brookman
, Judge Alice Schlesinger, (Supreme Court, N.Y. County) addressed the issue of whether the plaintiff filed his complaint before the statute of limitations had run. In answering that question, the Court had to consider whether e-mails exchanged by the plaintiff and defendant/physician on September 30, 2012 triggered the continuous treatment doctrine such that it extended the statutory period by two days and render the commencement of the action timely. Significantly, the Court concluded that the e-mails did constitute continuous treatment and defendant’s motion to dismiss was denied.
Briefly, the plaintiff presented to the doctor’s office on September 28, 2012, for treatment of a wound to his right heel. Two days later, on September 30th, the plaintiff e-mailed the defendant with a photo of his foot and an update on the progression of his symptoms. Defendant responded that same day “providing medical advice” to the plaintiff. It appears that advice consisted of “take the antibiotics just in case”, that fever and chills are from the wound and “let me know how you feel tomorrow”. The Court took the defendant’s response/e-mails on September 30th to constitute “continuous treatment for the same illness or injury or condition” – to wit: providing medical advice pertaining to the healing of his heel wound. The Court found defendant’s case law and position unavailing. Rather, the Court found that the plaintiff continued to seek and “received an actual course of treatment” from the defendant, albeit by e-mail communication.
Jason T. Katz