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CPLR 214-a

Malpractice or Ordinary Negligence?

September 1, 2015
CPLR 214-a
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Tracy v Vassar Bros. Hosp.,

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 [1996]). “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.

Court of Appeals Clarifies A Key Limitations Issue In Med Mal Cases

June 17, 2015
CPLR 214-a, Limitations
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Walton v Strong Mem. Hosp., 

___ NY3d ___, 2015 NY Slip Op 04786 [2015]

The Court of Appeals has just issued this significant opinion reviewing its major precedents concerning the foreign-object rule in medical malpractice cases, arriving at the factors determining when a given object may qualify for the discovery rule codified in CPLR 214-a, and when it must be excluded as a “fixation device.”

Recall that where a med mal action is based on the discovery of a foreign object in the patient’s body, the statute allows for an extension of the limitations period, for a year after the discovery. Excepted from consideration as “foreign objects” are chemical compounds, fixation devices, and prosthetic aids or devices. Defendants will argue for a broad definition of these terms, thus narrowing the category of foreign objects subject to the discovery rule. Plaintiffs, of course, take the opposite tack.

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A Continuous Course of Treatment

May 19, 2015
CPLR 214-a, Limitations
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Martens v St. Luke’s-Roosevelt Hosp. Ctr.,

___ AD3d ___, ___ NYS3d ___, 2015 NY Slip Op 04199 [1st Dept., 2015]

In this medical malpractice case, the defendant moved for summary judgment on limitations grounds, and the plaintiff opposed, claiming a continuous course of treatment.

In June of 2002, the defendant Dr. Wu diagnosed certain growths as fibroids. Between then and September, 2009, the plaintiff and Dr. Wu agreed to monitor the fibroids instead of removing them. When the plaintiff returned for follow-up visits, Dr. Wu asked about the fibroids, monitoring them through the use of ultrasound and physical examinations. When the plaintiff eventually decided to remove the fibroids through surgery, she consulted with Dr. Wu. The plaintiff did not, however, return for follow-up visits each year, due to work and travel.

Unfortunately, the growths were cancerous tumors instead of fibroids, and plaintiff sued for the misdiagnosis.

Dr. Wu’s motion was to dismiss so much of plaintiff’s claim as concerned treatment earlier than December 4, 2007. The plaintiff’s showing of the facts recited, however, was sufficient to raise a triable issue of fact as to whether there had been a continuous course of treatment running from the initial diagnosis of fibroids, and so the motion was properly denied.

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