NY court applies statute of limitations to lack of treatment

If you want to sue a dentist for malpractice in the State of New York, you have to file the suit within two-and-a-half-years of the misdeed. But what if you are suing the dentist for not doing something?

The statute of limitations still applies, the Appellate Division of the Supreme Court ruled last week, according to Leagle.com.

The case arose after William Sullivan, a New York dentist, retired in 2006 and his patient, David Johanson, began seeing another dentist in 2007. The new dentist advised Johanson that he had suffered bone loss from advanced periodontal disease.

Johanson sued Sullivan in October 2007, alleging that Sullivan should have treated his periodontal disease from July 21, 2003, to December 12, 2006.

But the Supreme Court dismissed any damages that applied to lack of treatment before April 10, 2005, because of the statute of limitations.

Johanson appealed, arguing that the statute of limitations didn't apply under the "continuous treatment doctrine," which specifies that the statute of limitations is tolled until the end of a course of treatment when "the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint."

But failing to start a course of treatment doesn't constitute a course of treatment, the court ruled. So the statute of limitations applied.

Likewise, the court dismissed Johanson's claim that Dr. Sullivan had failed to give informed consent. Not telling a patient about a problem is not the same as doing a procedure without getting consent, the court ruled.