In Capece v. Nash , Linda Capece sued to recover damages for medical malpractice and wrongful death.
Dr. Thomas Nash -- an infectious disease and pulmonary medicine physician -- treated Capece's decedent from November 1999 to May 2000. After an initial biopsy and CT scan, Nash advised his patient to undergo an "open lung" biopsy or additional CT scans. However, that advice was supposedly ignored and no further appointments were scheduled.
Nearly a year later, the patient was diagnosed with "pneumonia and chronic obstructive pulmonary disease." After discovering a problem with her right lung, the patient was advised by a pulmonologist to return to Nash for "further evaluation." On May 24, 2001, the patient was diagnosed with lung cancer and died on January 12, 2003.
When the Kings County Supreme Court granted the doctor's motion to dismiss the wrongful death and medical malpractice claims based on the physician's conduct prior to May 21, 2001, Capece appealed to the Appellate Division, Second Department.
In order to defeat the doctor's defense that portions of the case were "time-barred," Capece needed to show that the treatment received was "continuous" in nature. She wasn't able to do so because Nash's treatment prior to May 21, 2001 preceded the suit's filing by more than 2.5 years. The wrongful death component -- which was premised on allegations of medical malpractice committed after May 21, 2001 -- could proceed because it was filed within the requisite 2 year time-frame.
You think Capece capisce ?
To download a copy of the Appellate Division's decision, please use this link: Capece v. Nash