By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A New York appeals court freed a Madison Avenue Eye Care Ltd. optometrist Paul Kantrowich from a malpractice suit on November 23, 2016,. It was alleged in the suit that Kantrowich negligently failed to diagnose a patient’s partial blindness that was caused by a brain tumor. The brain tumor was diagnosed by a different doctor. The patient, Neil Flaherty, filed the suit too late, the court said, so the complaint against Kantrowich was dismissed.

Case Dismissed Because of Three-year Statue Limitations in New York.

The New York appellate court said in its decision that Flaherty cannot bring up any appointments he had with Kantrowich that occurred before February 2012 because his suit did not meet an exception to the three- year statute of limitations that exists in New York. The five-judge appellate court panel upheld the lower court’s September 2015 dismissal.

Kantrowich Did Not Diagnos Flaherty’s Brain Tumor.

The case dates back to 2005, when Kantrowich first examined Flaherty. Kantrowich had diagnosed Flaherty as being legally blind in his right eye, with 20/400 vision. For seven years, Flaherty returned to Kantrowich once a year to have his eyes examined as well as to get a prescription for contact lenses.

According to the allegations that were made, during the yearly visits, Kantrowich saw optic neuropathy, or damage, in Flaherty’s right eye. Kantrowich also noticed that the nerve was paler than it should have been. In February 2012, Kantrowich referred Flaherty to a neuro-opthamologist. The new physician to whom he was referred said Flaherty’s blindness was caused by a meningioma (tumor).

Flaherty’s suit against Kantrowich and Madison Avenue Eye Care, Ltd., claimed that Kantrowich should have either diagnosed the tumor earlier or referred him to a neuro-opthamologist sooner.

The appellate court said that Flaherty’s claims are subject to New York’s three-year statute of limitations because he did not come under the “continued treatment doctrine” which provides an exception to the statute of limitations. The court said that since Kantrowich only performed routine or diagnostic examinations and did not treat the neuropathy, his work cannot be considered a course of treatment.

The appellate court’s opinion states: “The measurement of plaintiff’s nerve pallor annually did not itself amount tp continuos treatment, or reflect any agreement to monitor the condition, but was part of the routine examination.”

The appellate panel stated that the February 2012 date falls within the statute of limitations, but because Flaherty did not argue that the delayed diagnosis worsened his condition or prevented him from getting better, the claim fails.

Editor’s Comments

It must be remembered that this case occurred in New York. Not every state has a statute of limitations for medical malpractice cases as long as New York’s is. For example, Florida’s statute of limitations for a medical negligence case is two years (in most cases). Most states have shorter statutes of limitations, with some as short as a year. If you suspect that you may have been the victim of malpractice, then you need to consult an experienced medical malpractice plaintiff’s attorney and follow-up on this at the earliest possible time. Any attorney will need time to investigate and follow the appropriate procedural steps required by law. Also, you may need to contact several different attorneys to find one who is interested in taking your case; but again, do this as early as possible.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents physicians, medical doctors, optometrists and ophthalmologists in defending against board complaints against their licenses, defending malpractice suits, defending peer review actions, defending whistle blower and other types of complex litigation cases. We represent physicians in Medicare and Medicaid audits, recovery actions, litigation, inspections and audits involving the DEA, Centers for Medicare and Medicaid Services (CMS), ZPIC audits, RAC audits, Department of Health (DOH) investigations, and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at

Kass, Dani. “NY Eye Doctor Escapes Suit Over Missed Brain Tumor.” Law360. (November 23, 2016.) Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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