“The ‘Continuous Representation’ Toll for Claims of Professional Malpractice”

Under New York law, a professional malpractice claim “accrues” – that is, the statute of limitations clock begins to tick – at the moment of the act of malpractice. It does not wait for the victim to suffer any injury as a result of the malpractice, or to discover the malpractice. It is therefore possible – indeed, it frequently occurs – that a client does not discover that any injury has been suffered until it is already too late to sue. The New York Court of Appeals has created a toll to help ameliorate the perceived harsh effects of this rule, first articulated in a 1962 medical malpractice case, Borgia v. City of New York. The Court ruled that when a patient continues to be treated by the doctor or hospital, for the same condition that gives rise to the claim, the statute of limitations is tolled until that “continuous treatment” ends. Although the Court of Appeals recognized early on that this doctrine had application to non-medical professional malpractice as well, the non-medical analog, “continuous representation,” did not receive full-blown attention from the Court until 2001, when it decided the first major case applying the doctrine to legal malpractice. And it was not until 2007, in Williamson v. PricewaterhouseCoopers, that the Court found its “first opportunity to determine the applicability of the continuous representation doctrine in an accounting context.” On both occasions, the Court relied heavily upon its medical malpractice jurisprudence. But the analogies between medical malpractice and other professional malpractice often break down. In the wake of these landmark decisions applying the continuous representation doctrine to legal and accounting malpractice situations, lower Courts will struggle to fit the sometimes round peg of medical malpractice doctrine into the square hole of attorney and accountant malpractice cases. To fully understand the Court of Appeals’ analysis of the continuous representation doctrine, it is first necessary to analyze, as the Court itself did, the history of “continuous treatment” in the medical malpractice context.

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