130 A.D.3d 713, 13 N.Y.S.3d 226 [2d Dept., 2015]
This is another of the many cases about the distinction between ordinary negligence and medical malpractice, with their differing limitations periods. Ordinary negligence claims get a 3-year period, but med mal claims get only 2 ½, and so many plaintiffs with claims falling on the edge between the two seem to sue right in that 6-month gap, giving folks like me something to write about.
Here, the main actor was a surgeon named Panos, who operated on the plaintiff on February 5, 2009, at the defendant hospital. Plaintiff’s lawsuit was commenced on January 26, 2012, well beyond 2 ½ years and just before the expiration of 3 years. The hospital, of course, moved to dismiss on limitations grounds. Supreme Court denied the motion, holding that some of plaintiff’s claims sounded in ordinary negligence and were timely. As to the others, Supreme Court denied the motion as premature in advance of disclosure on the plaintiff’s claim to an equitable estoppel.
The plaintiff’s claim of estoppel was based on the idea that the hospital knew of Panos’ negligence, and that its failure to stop him constituted a fraud on the public. The invocation of the word “fraud,” however, is not sufficient to justify an equitable estoppel against the limitations defense. In this context, the fraud must in some way have concealed the malpractice so as to prevent the plaintiff from bringing suit. Therefore, the medical malpractice claims against the hospital should have been dismissed. So far, there is nothing remarkable here.
It is the claims which the court sustained as ordinary negligence which I find interesting. The cases have acknowledged the difficulty in distinguishing between malpractice and ordinary negligence, especially in the hospital context. To say that the distinction lies in whether the hospital’s negligence was in fulfilling some duty other than treating the patient does not always make the question any clearer (see, Weiner v Lenox Hill Hospital, 88 NY2d 784, 650 N.Y.S.2d 629 ). “Here, the allegations in the complaint pertaining to the number of surgeries Panos was scheduling for any given day, the allegations that Vassar failed to establish procedures regarding the number of surgeries that could be scheduled for a given day, and the allegations that Vassar failed to investigate or respond to warnings and complaints from its employees regarding Panos’s practices generally, all sound in ordinary negligence rather than medical malpractice”. The court found that these allegations do not involve medical judgment or analysis regarding the plaintiff’s treatment.