Claims Against Sloan Kettering Over Timely Diagnosis Survive

, New York Law Journal

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Alice Schlesinger

Claims brought by a woman alleging that her doctors failed to timely diagnose and treat her breast cancer are not barred by the two-and-a-half-year statute of limitations for medical malpractice claims because the woman's frequent cancer screenings, which she underwent because of her family history of cancer, were a "continuous treatment," a Manhattan state judge has ruled.

Supreme Court Justice Alice Schlesinger (See Profile) ruled on Dec. 17 in Donovan v. Keating, 107208/08, that the screenings should be considered a continuous treatment for cancer even before any cancer was detected, denying the defendants' motion for summary judgment.

Marguerita Donovan sued Memorial Sloan-Kettering Cancer Center and several doctors there in 2008.

Donovan began getting regular mammograms at Sloan-Kettering in 1990, when she was only 33, because she had a family history of breast cancer and was at higher risk than women in the general population.

Between 1997 and 2001, Donovan's radiologist sent multiple reports to her gynecologist saying that no suspicious masses were detected in routine mammograms. In 2001, however, the radiologist sent a report that referred to a mass and reported that there was "no change" in it, suggesting that he had in fact noticed the mass earlier.

The radiologist said in his deposition that he had noticed the mass as early as 1997, and that it was not included in his reports because of a "technical error." He also testified that, in 1997, he intended for Donovan to be called back for a follow-up appointment, but she never was, because of error by the hospital. He said that he did tell her to come back at the appointment.

Doctors monitored the mass at subsequent appointments between 2001 and 2006, and eventually determined that it was cancerous. Donovan began treatment. She alleges in her suit that the diagnosis and treatment were not timely.

The defendants sought summary judgment dismissing all claims originating before 2001. Medical malpractice claims are subject to a two-and-a-half-year statute of limitations unless the alleged injury happened as part of a continuous course of treatment. The defendants acknowledged that the continuous treatment went back to 2001, when the mass was first reported, but no further.

Donovan, on the other hand, maintained that the continuous treatment started at least in 1997 and possibly further back. She testified that doctors found various abnormalities beginning as early as 1992, and prescribed follow-up visits.

The defendants pointed to two Court of Appeals cases in support of their position: Nykorchuck v. Henriques, 78 NY2d 255 (1991) and Young v. New York City Health & Hosps. Corp., 91 NY2d 291, 296 (1998). In both of those cases, patients were seeing doctors regularly for something unrelated to cancer, noticed lumps in their breasts, underwent breast exams in the course of their doctor visits an were ultimately diagnosed with breast cancer.

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