A physician’s continuous prescribing of prescription medication does not constitute continuous treatment; limitation periods are not tolled by a physician refilling a previously prescribed medication

New York



Refilling Prescription Medication Does Not Toll the Limitation Period on Malpractice Claims In Caraballo v New York Presbyt. Hosp./Weill Cornell Med. Ctr. 2021 NY Slip Op 05920, (N.Y. App. Div. 1st Dep’t October 28, 2021), a patient sued his physician and the physician’s clinic in order to recover damages for malpractice. At issue was whether the limitation period had passed since the patient had been treated by the defendant’s physician and clinic. The patient had last been treated at the clinic on July 28, 2015. As a result, the 2.5-year limitation period expired on January 26, 2018. The patient’s claim was filed on April 17, 2018. However, the patient claimed that the limitation period was tolled because, after July 28, 2015, physicians at the clinic continued to prescribe medications to him. The patient was prescribed medications through January 8, 2016, and last filled the prescriptions on July 23, 2016. Supreme Court Dismisses Complaint The Supreme Court, New York County dismissed the complaint. The Supreme Court held that the continued use of medications previously prescribed by a physician, and the refill of those prescriptions thereafter, do not, by themselves, constitute continuous treatment within the meaning of CPLR 214-a. Where the only reason offered for extending the period of limitations is an outstanding prescription for the drug, with no evidence of an appointment for future treatment, the continuous treatment doctrine is inapplicable (at 4-5 of the trial court decision). Appellate Division, First Department Affirms The Appellate Division, First Department affirmed the decision of the Supreme Court. The Court noted that the patient’s act of continuing to take the medications prescribed at a prior appointment was not sufficient to extend the patient’s course of treatment. In order for treatment to be ongoing, the understanding that treatment is continuing must be shared by both the physician and the patient. A patient’s assertion that they continued to be a patient is not dispositive (at 2).

April 14, 2022
Caraballo v New York Presbyt. Hosp./Weill Cornell Med. Ctr. 2021 NY Slip Op 05920, (N.Y. App. Div. 1st Dep’t October 28, 2021)
New York Courts