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Appellate Court Reverses to Dismiss Complaint Against Surgeon and Hospital

February 24, 2015

The Court of Appeals, New York’s highest court, recently issued a unanimous reversal in defendants’ favor, in an appeal briefed and argued by Ellen B. Fishman.

 

The plaintiff sued eight years after undergoing cardiac surgery, contending that a surgeon had transmitted an infection to his patient during the procedure. In a New York State Supreme Court, Rosaleen T. McCrory successfully moved on defendants’ behalf to dismiss the action as barred by the two and one-half year statute of limitations applicable to medical malpractice claims.

 

On plaintiff’s appeal to the intermediate appellate court, the Appellate Division, Second Department, split three-two in favor of sending the matter back to Supreme Court for further discovery. The majority at the Appellate Division was troubled by plaintiff’s claim that the hospital’s chief of infectious diseases had misled him as to the possible source of his infection. On this basis, plaintiff asserted that the doctrine of equitable estoppel should be applied to preclude defendants from asserting their statute of limitations defense. While stopping short of precluding that defense, the Appellate Division concluded that the factual record should be more fully developed before the case was dismissed.

 

Defendants sought and obtained permission from the Appellate Division for immediate review of this important legal issue by the Court of Appeals. All seven judges of the Court of Appeals agreed with defendants and the dissenting Appellate Division justices that this action was time-barred. Plaintiff was found to have sufficient timely knowledge of his infection and suspicions as to when it may have been transmitted, to have commenced the action within two and one-half years after his discharge from the hospital. Thus, equitable estoppel was not applied and defendants could rely on their valid statute of limitations defense. As a result of this appeal to the Court of Appeals, the action was dismissed in its entirety without either the surgeon or the chief of infectious diseases having to submit to a pre-trial deposition.

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