Terry D. Horner recently won a dismissal on statute of limitations grounds for two Hudson Valley, NY rheumatologists and their group practice.
The case involved a self-represented woman who claimed that one of Feldman, Kleidman, Collins & Sappe LLP’s (FKC&S) clients kept her on two different steroid medications while she was breastfeeding (prednisone and Azathioprine) and unduly pressured her to get the Pfizer COVID vaccine. She also claimed that her medical records contained defamatory statements claiming that she was a smoker when she was not. As a result, she claimed to have suffered a nervous breakdown, stress and anxiety.
FKC&S’s second client, to whom the patient was transferred after the first client left the practice and relocated, later issued addenda to the patient’s medical records indicating that the patient is a non-smoker. The patient also claimed that steroid treatments while breast feeding might have caused certain allergies, as well as dental and body damage that she and her child allegedly endured.
The patient had last seen FKC&S’s first client in July 2021, around the time he left the practice, so the two-and-half year statute of limitations — the deadline for starting a medical malpractice lawsuit — would have expired in January 2024. She saw FKC&S’s second client for the last time in June 2022, so the statute of limitations would have expired in December 2024.
In September 2022 the patient telephoned FKC&S second client’s office seeking a referral for a physician in New Jersey, where she was moving. In February and April 2023, the patient telephoned the group practice to request the correction of “inconsistencies” and “inaccuracies” in her medical records. In September 2023 FKC&S’s second client posted addenda to several of the office notes recorded by the first client to reflect that the patient is a non-smoker. The practice notified the patient of these addenda and sent her copies of them.
The patient started her lawsuit in March 2025, after the statute of limitations had already expired for both FKC&S clients and the practice. The patient claimed the lawsuit was timely because her telephone calls to the practice in 2022 and 2023 constituted “continuous treatment,” which can extend the statute of limitations in certain circumstances.
Legally, it is up to the patient to prove that the continuous treatment doctrine applies based on telephone calls. This exception will apply only when the purpose of the call(s) is to address the patient’s treatment — and the calls demonstrate a mutual intention to continue treatment — rather than for issues such as referrals or the correction of records.
Because none of the patient’s telephone calls were about the treatment by FKC&S’s clients (that had ceased in 2021 and 2022 respectively), FKC&S moved to dismiss the complaint on the grounds that the statute of limitations had expired in both cases.
In opposition, the patient claimed that the complaint was sufficient, that she was still a patient based on the fact that she had recently been able to gain access to the practice’s patient portal, which still showed her as a smoker, and that the New York State Public Health Law gave her the right to sue for delayed delivery of records.
FKC&S replied by demonstrating that the patient had not met her burden of proving that the 2022 and 2023 telephone calls concerned the continuation of medical treatment, that her 2026 visit to the patient portal did not reflect any treatment since 2022 and that she did not have the legal right to sue over her records access.
The court dismissed the complaint, as to both FKC&S clients and their group practice, because the March 2025 complaint was untimely.