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New York Medical Malpractice Law: Statute of Limitations, Research Paper Example

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This paper will discuss New York Medical Malpractice Law and the statute of limitations. In particular, the examination will focus on the statute of limitations for a medical malpractice claim in New York. A medical malpractice case, in New York state, must be filed within two years and six months of the incident under CPLR 214 a.

There are certain exceptions under the New York Medical Malpractice law than extend the statute of limitations or the length of time from which a plaintiff may file a medical malpractice suit. These exceptions will be discussed in great length. Several cases related to the particular exceptions to the statute of limitations for filing a medical malpractice claim will also be examined and discussed in depth.

At this particular time, the discussion will turn toward relevant cases pursuant to the New York Medical Malpractice Law and the exceptions to the normal statute of limitations. In Swezey v Montague Rehab & Pain Management., PC, 2008 NY Slip Op 01939, a psychiatrist dismissed pain symptoms as psychosomatic. The patient had been to many different pain specialists to be treated for the pain. Some of these specialists were chiropractors and acupuncturists. During the course of her pain treatments, the acupuncturist’s needle had penetrated her right ventricle in the heart.

The patient went on to complain about severe chest pain, along with various other sorts of pain. Then she complained about the pain to her psychiatrist, who dismissed the claims as psychosomatic.[1] The patient claimed that the psychiatrist did nothing to rule out a physical condition that may have been causing the pain.

The patient continued to experience extreme pain and finally had to undergo surgery. It was at that time when the acupuncture needle was discovered and surgically removed. Upon the discovery of the true source of the pain, the patient pursued a claim and filed a lawsuit against the psychiatrist.

The psychiatrist responded to the allegations by saying that she never agreed to treat the patient for her (the patient’s) pain.[2] The psychiatrist also alleged that the patient never complained to her about any chest pain, heart palpitations, or any other form of pain in the chest area. The plaintiff (psychiatrist) requested a motion for summary judgment.

The Second Department denied the psychiatrist’s motion for summary judgment.[3] The reason that the Second Department denied the psychiatrist’s request for summary judgment was because of the psychiatrist’s denial that thepatient had complained of chest pain. The denial on the part of the psychiatrist that the patient had never complained of chest pains raised issues of facts. If issues of fact are raised, the motion for summary judgment is dismissed.

In her request for a motion for a motion for summary judgment, the psychiatrist had stated that she never agreed to treat, evaluate, or diagnose the patient for the patient’s symptoms of pain or for any other physical illness. The question then arises, should a psychiatrist be required to rule out any physical conditions if a patient complains of symptoms of pain?

Another case that is very similar to the one just discussed will assist with the evaluation of medical malpractice statutes in New York. In Morales v Carcione, 2008 NY Slip OP 01513, a patient filled suit because she was burned by a heating pad.[4] The patient was being treated for neuropathy and other neuromuscular problems at Central Westchester Neuromuscular Care, P.C.

The statute of limitations for a medical malpractice claim in New York must be filed within two years and six months of the incident under CPLR 214 a. The defendant (Central Westchester Neuromuscular Care, P.C.) filed to dismiss due to the statute of limitations just mentioned.

The case went to the New York Supreme Court. The New York Supreme Court found that the plaintiff could file suit as a personal injury claim under CPLR 214(5). CPLR 214 (5) has a three year statute of limitations for filing a personal injury claim.The Second Court reversed this decision because the case was specifically a malpractice suit, and should be filed within the New York statute of limitations of two years and six months for a medical malpractice claim.[5]

CPLR 214-a is an “action for medical, dental or podiatric malpractice to be commenced within two years and six months.[6] There is one particular case that will be noted herein; Alvarado v Beth Israel Med. Ctr., 2009 NY Slip Op 02550 (App. Div., 2nd, 2009).

In Alvarado v Beth Israel Med. Ctr., 2009 NY Slip Op 02550 (App. Div., 2nd, 2009), it was determined that in order for a claim to be considered as an exception to the CPLR 214 a, it must fit within specific parameters. The first parameter is that a new claim must relate back to an old claim by another defendant.

In order to do this, however, the plaintiff must establish several circumstances. The plaintiff must establish that both his claim and the claim of the previous defendant arose out of the same occurrence, transaction, or conduct of the prior defendant. Additionally, the plaintiff pursuing the new claim must have a similar interest with the original defendant.[7]

By virtue of that relationship, the prior defendant will be charged with a notice of institution of action. The defendant can maintain the same defense as was mounted in the prior case, without having to initiate a brand new one. Finally, that new plaintiff should know of the previous defendant’s identity, unless he or she (the plaintiff) is mistaken as to the identity of the prior defendant. This assures a timely action. This is known as the relation-back doctrine. [8]

An IME doctor was subject to a case decided by the New York State Court of Appeals in June of 2009.[9] On June 24, 2009, the case of Bazakos v Lewis, 2009 NY Slip Op 05199 was decided.

The case was brought as a negligence case rather than a medical malpractice case. Bazakos v Lewis was brought as a negligence case because the two year and six months statute of limitations for filing a medical malpractice case had run out.

The IME or Independent Medical Examination was performed pursuant to CPLR 3121. The plaintiff alleged that he was harmed while undergoing the Independent Medical Examination. The 4-3 decision by the Court ruled that the CPLR 214-a was the appropriate venue by which to submit the suit and dismissed the action as untimely.[10]

In La Barbera v New York Eye and Ear Infirmary, the plaintiff sued the defendant because of complications following nasal surgery. The plaintiff underwent the procedure at the New York Eye and Ear Infirmary in May of 1986.[11] The defendant, Dr. Shapiro, used Bacitracin gauze to pack the nasal cavity and placed a plastic-a silastic stent in the nasal area.

The purpose of placing the plastic a silastic stent was to provide temporary support and healing in the nasal area. The Bacitracin gauze and the plastic- a silastic stent was to be removed ten days later.[12] When the plaintiff returned ten days later, Dr. Shapiro only removed the Bacitracin gauze and failed to remove the plastic- a silastic stent.[13]

During the subsequent six years, the plaintiff experienced problems related to the nasal area, along with respiratory problems.He addressed his concerns to Dr. Shapiro and other doctors. The plaintiff’s last contact with Dr. Shapiro was in September of 1988.[14] Neither Dr. Shapiro nor any other doctor was able to determine the cause of his (the plaintiff’s) suffering.

Endoscopic rhinoscopy was performed on the plaintiff in 1992 by a new doctor. During the endoscopic rhinoscopy, the nasal stent was discovered and subsequently removed. The removal of the stent resulted in the absence of the plaintiff’s complaints of suffering in his nasal area. An action was forthcoming and commenced on June of 1993, one year within the discovery and removal of the stent.

Accordingly, the New York Supreme Court dismissed the action against Dr. Shapiro because the two year and six months statute of limitations had run out. The New York Supreme Court stated that the “foreign object” exception did not apply in this case. The New York Supreme Court found that the statute of limitations had run out by more than 2 1/212 years past the last uncontested treatment by Dr. Shapiro in 1988.The plaintiff appealed the action of the New York Supreme Court and the Appellate Division affirmed. [15] The Appellate Division concluded that the foreign object was not left in the plaintiff’s nasal area deliberately. The key determining factor in the matter was the distinction between “whether the object was deliberately left inside the patient in the first place.” [16]

The Court defined a foreign object as something that the doctor did not intend to leave in the body in comparison to afixation device which is meant to be left inside a body. The stent was classified as a fixation device because it was meant (temporarily) to be left inside the body. [17]

The Court stated that although the ruling was troublesome, the ruling was a way to prevent cases that would be in conflict with the Court of Appeals in the area of what defines a “foreign object” exception of CPLR 214-1. The Court also added that it did not want to expand upon the discovery rule. Justice Murphy had the sole dissenting opinion. He stated that the claim was based upon the physician’s negligence in removing the temporary stent. [18]

The “foreign object” exception precedent was set in Flanagan v. Mount Eden Gen. Hosp. (24 N.Y. 2nd 427, 301 N.Y.S. 2nd 23, 248 N.E. 2nd 871). In that case, a surgical clamp had been negligently left inside of a patient’s body.[19] Foreign object cases have statutes of limitations that do not run until the patient could have reasonably expected to have discovered the malpractice (id., at 431, 301 N.Y.S. 2nd 23, 248 N.E. 2nd 871). Following the Flannagan decision in 1975, the “foreign object” exception was codified in the form of CPLR 214-a. [20]

Shortly after the “foreign object” exemption was codified in 1975 into CPLR 214-a, the Court heard the case of Rodriguez v. Manhattan Med. Group. [21] (77 N.Y. 2nd 217, 566 N.Y.S. 2nd 193, 567 N.E. 2nd 235). In that case, the foreign object was an IUD. The physician in this case tried to remove the IUD or “foreign object” and did so negligently. This case was different than Flanagan v. Mount Eden Gen Hosp. (24 N.Y. 2nd 427, 301 N.Y.S. 2nd 23, 248 N.E. 2nd 871) because the suit was not brought against the physician who negligently tried to remove the IUD or “foreign body” from the woman’s body.

The Court summarized the claim, in effect, by saying that the claim was classified as a failure or negligence to observe the unwanted presence of a previously inserted device. Thus, the claim would fall under the category of a misdiagnosis. Therefore, any claim pursuant to the “foreign object” exception to CPLR 214-a is not applicable to this particular case (566 N.Y.S. 2nd 193, 567 N.E. 2nd 235).

In a recent decision, a suture was not considered a “foreign object;” it was termed as a “fixation device.” The Court in Rockefeller v. Moront (81 N.Y. 2nd 560, 601 N.Y.S. 2nd 86, 618 N.E. 2nd 119) said that objects used during the course of ordinary medical procedures such as sponges, surgical clamps, and scalpels are used as temporary devices.[22] These devices are intended to be removed after the completion of the procedure.[23]

The Court went on to say that if an object was meant to only remain in a body temporarily, the physician was negligent if the objects were not removed within an appropriate time period. Thus, objects that fall under this category are considered “foreign objects” and qualify as an exemption under CPLR 214-a.

Plummer ex rel Heron v N.Y City Health and Hospitals Corp.

In Plummer v. New York City Health and Hospitals Corporation, the plaintiffs requested continuous treatment from an institution rather than a physician or stream of physicians.The infant was born May 21, 1985 at the North Central Bronx Hospital.[24] This hospital was owned and operated by New York City Health and Hospitals Corporation, the appellant. The infant was born “lifeless,” suffering from respiratory failure at birth. The respiratory failure that the infant suffered at birth allegedly resulted in brain damage that caused the child to have learning and speech disabilities. The infant was also diagnosed with Erb’s Palsy. The infant was intubated in the nursery-neonatal division, where he received special care for ten days.

Upon his discharge, the infant (plaintiff) was treated at three different medical centers. The plaintiff was treated at Montefiore Hospital Medical Center for his cardiac condition; North Central’s Pediatric Rehabilitation Medicine Clinic for Erb’s Palsy, and received generalized, routine care at North Central’s Pediatric Clinic.

The plaintiff’s mother told North Central Pediatric Clinic in September of 1988, that she intended to move to Miami, Florida.[25] The North Central Pediatric Clinic advised the plaintiff’s mother to seek treatment for the child from Miami Children’s Hospital. The North Central Pediatric Clinic also offered to transfer the plaintiff’s medical records to Miami Children’s Hospital, pending the mother’s request.

The North Central Pediatric Clinic scheduled an appointment at Miami Children’s Hospital for the plaintiff a month in the future. The plaintiff’s mother did not keep the appointment.[26] The plaintiff visited the North Central Pediatric Clinic on December 16, 1988 for routine healthcare prior to moving to Miami. After exposure to tuberculosis, the plaintiff visited the North Central Pediatric Clinic again in March of 1989.

In January 1990, the plaintiff and his mother visited the North Central Pediatric Clinic after he and his mother had moved back to New York from Miami, Florida. The plaintiff had been scheduled to undergo a speech evaluation lesson on May 14, 1990, but failed to appear. The plaintiff did, however, visit the North Central Pediatric Clinic in July of 1990 for routine kindergarten examination and immunizations.

Later, in July 1990, the plaintiff revisited the North Central Pediatric Clinic for a scalp infection. The plaintiff missed another appointment in August of 1990 and did not visit the

North Central Pediatric Clinic until July 1991, having missed three speech evaluation sessions. From July 1991 forward the plaintiff commenced routine treatment at the North Central Pediatric Clinic.

A claim of negligence was filed on behalf of the plaintiff and the plaintiff’s mother on October 18, 1990.[27] The claim alleged negligence and medical malpractice in the prenatal and postnatal care of the mother and son. The allegations were specifically targeted toward obstetrical negligence during the delivery of the newborn.

The HHC requested summary judgment moving to dismiss the claim because the plaintiffs did not serve a notice of claim within the ninety days of the alleged malpractice as is stated under General Municipal Law in section 50-e, and McKinney’s Uncons Laws of NY § 7401 [2] [New York City Health and Hospitals Corporation Act § 20 (2); L 1969, ch 1016, § 1. [28]

The plaintiff argued that although the notice of the claim was served five years after the alleged malpractice, it was still served while the plaintiff was under continuous treatment at the North Central Pediatric Clinic for injuries that occurred during delivery.

The continuous treatment doctrine theory in this case did not prevail for the plaintiffs. However, the New York Supreme Court denied HHC’s motion because it had waited until the ten year infancy limitations prior to bringing an action. The HHC was estopped from raising the issue of untimeliness of the claim for this reason.

The Appellate division was divided but affirmed that the statute of limitations could be extended under the continuous treatment doctrine. However, the plaintiff had to show proof that he had received a continuous pattern of treatment at the North Central Pediatric Clinic for birth injuries until the time that the notice of the clam was filed.[29]

The plaintiff brought an action of medical malpractice against a doctor who failed to properly diagnose her with breast cancer.[30] She alleged that the doctor (defendant) failed to monitor a lump in her right breast. The lump was removed and the plaintiff underwent chemotherapy.

The suit was commenced eight years after the lump was brought to the defendant’s (doctor’s) attention. The plaintiff had not seen the defendant, even routinely, for four years prior to the notice of action. The two and one half year statute of limitations for medical malpractice (CPLR 214-a) prevents such a claim.

The defendant moved for a motion to dismiss because the plaintiff had claimed the continuous treatment doctrine. In the continuous treatment doctrine, as discussed earlier in this paper, the statute of limitations runs until the end of the course of treatment for a particular illness. (McDermott v Torre, 56 N.Y. 2nd 399; Borgia v City of New York, 12 N.Y. 2nd 151).

The New York Supreme Court denied motions to dismiss. The New York Supreme Court cited questions of fact as its reason for doing this. The attempt on the part of the plaintiff to pursue the continuous treatment doctrine was unsuccessful in this case.

Background

In 1974, the plaintiff first began seeing the defendant for infertility problems.[31] The infertility problems were the likely result of secondary endometriosis. For a period of eight years, the doctor treated the plaintiff (patient) for endometriosis. The disease culminated with surgery in April of 1982.

The plaintiff visited the defendant’s (doctor’s) office in July of 1979. At that time, the plaintiff brought to the defendant’s (doctor’s) attention a lump in her (the plaintiff’s) right breast. The doctor (defendant) allegedly examined the lump and attributed it to fibrocystic disease. Upon admission to the hospital for the surgery on her right breast lump, lumps on both of her (the plaintiff’s) breasts were discovered.

Following the surgery, the plaintiff was seen by the doctor (defendant) for a total of three times. She underwent treatment in September of 1983 for postoperative care and hormone replacement therapy. This was the last contact that the plaintiff (patient) had with the defendant (doctor). Prescriptions, however, were phoned in on the behalf of the plaintiff (patient) by the defendant (doctor) in 1984 and in June of 1985.

The plaintiff (patient) detected an enlargement of the lump (which was now a mass on her right breast), and scheduled an appointment with the defendant (doctor) in January 1986. The plaintiff was examined by the defendant (doctor) who referred her promptly to an oncologist. The oncologist diagnosed the plaintiff with breast cancer. On December 1987, an action was commenced.

The purpose of the continuous treatment doctrine exception is to maintain the physician patient relationship from the onset of the disease to the cure. It is believed that continuing with the same physician is the most effective way to cure or treat a disease.[32]

The continuous treatment exception also attempts to prevent the interruption in the patient’s care by an unforeseen lawsuit. It is an essential factor in the doctrine of the continuous treatment exception that if a physician is accused of malpractice, he or she is in the best possible position to correct a medical error or mistake.

The doctrine of the continuous treatment exception must show that there has been a pattern of treatment between the patient (plaintiff) and the doctor (defendant) in the treatment of a particular disease or ailment. The treatment that is given by the defendant (doctor) to the plaintiff (patient) must be the reason why a lawsuit is initiated.

The New York Supreme Court held that neither the mere “continuing relation between physician and patient” nor “the continuing nature of a diagnosis” is sufficient to satisfy the requirements of the doctrine.[33]

The continuous treatment doctrine exception cannot be present in the absence of the doctor’s not continually treating a patient’s condition.[34] Nor should it excuse the plaintiff in her delay in commencing a lawsuit. In this case, the New York Supreme Court stated that the plaintiff failed to support the facts that would have a cause for the finding that the course of treatment that she established with the defendant had any connection to her resulting breast cancer condition.

The only course of treatment that the plaintiff alleged that she had continuous treatment with the defendant was that of endometriosis.[35] Therefore, the relevant statute and also under case law is not sufficient to uphold this case under the diagnosis of breast cancer. The statute of limitations in New York under CPLR 214-a, very specifically says that in order for the exception to apply, the continuous treatment must be for “the same illness, injury, condition which gave rise to the *** act, omission or failure” that the plaintiff protested (McDermott v Torre). In McDermott v Torre, it was ruled that the series of treatments must be in approximation with the initial condition. In this case, there is no connection with the latter diagnosis of breast cancer and the former diagnosis of fibercysitic disease or endometriosis.[36]

This report has discussed the various exceptions to New York Medical Malpractice Law and the statute of limitations. An infant who was “born lifeless” and subsequently experienced respiratory problems, along with a woman who contracted breast cancer where two of the most impressive cases of the how the exceptions to the New York Medical Malpractice Law and the statute of limitations are applied under CPLR 214-a.

In the case of the infant with respiratory ailments, the claim that was filed alleged negligence and medical malpractice in the prenatal and postnatal care of the mother and son. The claim was served five years after the alleged malpractice and the exception of continuous treatment under CPLR 214-a was not upheld. However, the HHC was stopped from claiming that the claim was untimely.

The woman whose breast cancer when undetected and misdiagnosed did not prevail with her medical malpractice case under CPLR 214-a either. In her situation, the relevant statute and applicable case law was not sufficient to uphold her position. This is a disturbing case because a proper diagnosis from a competent doctor could have detected her breast cancer at an early stage. However, due to the doctor’s negligence, the woman ultimately underwent a lumpectomy.

It is helpful to remain positive in light of this report in regards to the New York Medical Malpractice Law and the statute of limitations. In particular, the examination focused on the statute of limitations for a medical malpractice. Doctors should be held responsible for their negligent actions and plaintiffs should not bring frivolous lawsuits. Both of these actions tie up the legal system, and slow down the process of justice.

The New York Medical Malpractice Law and the statute of limitations under CPLR 214-a needs to be improved, that is the conclusion of this report. Each medical malpractice case that is brought before the Court should be weighed in light of its own peculiar set of circumstances. The human side of the case is oftentimes overlooked in the criminal justice system. People have legitimate claims for personal and financial reasons.

A misdiagnosis or a late diagnosis could be the difference between life and death on the part of the patient. Doctors should not be constantly timid of lawsuits, however, they should be held accountable if they act in a negligent way. Doctors must be the pillars of the community and have taken an oath to uphold the health of a community.

The legal system must also find a way to expand upon the exceptions to the New York Medical Malpractice Law and the statute of limitations under CPLR 214-a without encouraging excessive lawsuits. A coordinated effort on the part of both parties is indicated by this study.

Works Cited

McKinney’s Uncons Laws of NY.

Alvarado v Beth Israel Med Ctr.

Bazakos v Lewis.

Borgia v City of New York.

“IME Doctors Subject to CPLR 214-a’s Two Year Six Month Statute of Limitation.” Torts, Insurance and Compensation. 11 July 2011 <http://nysbar.com/blogs/TICL/2009/06/ime_doctors_subject_to_214as_t.html>.

“La Barbera v. New York Eye and Ear Infirmary.” Find Law: Court of Appeals of New York. 12 July 2011 <http://caselaw.findlaw.com/ny-court-of-appeals/1040958.html>.

McDermott v Torre.

Morales v Carcione. 2008.

Nykorchuck v Henriquez.

Plummer v New York City Health and Hospitals Corp.

“Psychiatrist May Be Liable For Failing To Rule Out Physical Condition.” 18 March 2008. New York Legal Update. 12 June 2011 <http://www.nylegalupdate.com/medical_malpractice/>.

Rodriguez v. Manhattan Med. Group.

[1] New York Legal Update 2008

[2] ibid

[3] ibid

[4] Morales v Carcione

[5] New York Legal Update 2008

[6] Alvarado v Beth Israel Med Ctr.

[7] ibid

[8] ibid

[9] Bazakakos v Lewis

[10] Torts, Insurance and Compensation

[11] La Barbera v New York Eye and Ear Infirmary