## Facts

- A patient received ongoing obstetrical-gynecological care from a physician over several years, including periodic breast examinations.
- The patient later alleged the physician negligently failed to timely diagnose and treat breast cancer despite symptoms and opportunities to detect it.
- The cancer was ultimately diagnosed at a later time, when the condition was more advanced.
- The patient filed a medical malpractice action more than two years and six months after the alleged negligent failures to diagnose.
- The patient argued the limitations period was tolled by the continuous treatment doctrine based on her continued care relationship with the physician.
- The patient also argued the claim should be treated like a foreign-object case to permit a discovery-based accrual rule.
- The trial court dismissed the action as time-barred, and the Appellate Division affirmed.

## Issues

1. Whether a malpractice claim based on failure to timely diagnose breast cancer is time-barred under CPLR 214-a when filed more than two years and six months after the alleged negligent omission.
2. Whether continued visits and periodic examinations constitute continuous treatment for the same condition so as to toll the statute of limitations.
3. Whether failure to diagnose a tumor can fall within the foreign object exception permitting discovery-based accrual.

## Decision

- The New York Court of Appeals affirmed dismissal as untimely.
- The court held the claim accrued at the time of the alleged negligent act or omission, not at discovery of the cancer.
- The court held the continuous treatment doctrine did not apply because the later visits were not an ongoing course of treatment for the same condition that gave rise to the claim.
- The court held the foreign object exception did not apply because an undiagnosed tumor and diagnostic failures are not “foreign objects” under CPLR 214-a.

## Legal Principles

- Under CPLR 214-a, a medical malpractice action generally must be commenced within two years and six months of the act, omission, or failure complained of.
- New York does not apply a general discovery rule to misdiagnosis or failure-to-diagnose claims; accrual ordinarily occurs at the time of the negligent act or omission.
- Continuous treatment tolling applies only where there is a course of treatment for the same illness, injury, or condition underlying the malpractice claim; a continuing physician-patient relationship or routine, periodic examinations is insufficient.
- The foreign object exception is a narrow statutory category limited to tangible objects negligently left in a patient’s body and does not include tumors, diagnostic errors, or failures to detect disease.
- Expansion of discovery-based accrual beyond the statutory exceptions is for the Legislature, not the courts.

## Conclusion

The Court of Appeals held that a failure-to-diagnose malpractice claim filed outside the CPLR 214-a period is time-barred where the patient’s later visits reflect general or routine care rather than continuous treatment for the same condition, and the foreign object exception cannot be used to convert a diagnostic failure into a discovery-accrual case.


Nykorchuck v. Henriques, 78 N.Y.2d 255, 577 N.E.2d 1026 (N.Y. 1991)