Opinion
# 2013-028-536 Claim No. 121374 Motion No. M-83314 M-83497
12-05-2013
PREMLATA ZAVERI v. THE STATE OF NEW YORK
PAUL H. RETHIER, ESQ. HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Renee C. Cote, Esq. Assistant Attorney General
Synopsis
Although Claimant did not discover until March 2011 that she had been misdiagnosed at a State facility in May 2012, pursuant to CPLR 214-a the malpractice cause of action accrued when the misdiagnosis was made, not upon her discovery of the error. Consequently both the claim and the motion for permission to late file are untimely.
Case information
UID: 2013-028-536 Claimant(s): PREMLATA ZAVERI Claimant short ZAVERI name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote The caption of this action is amended sua sponte to reflect (defendant name) : the State of New York as the only properly named defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 121374 Motion number(s): M-83314, M-83497 Cross-motion number(s): Judge: RICHARD E. SISE Claimant's PAUL H. RETHIER, ESQ. attorney: HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: BY: Renee C. Cote, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: December 5, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read and oral argument was heard on Defendant's motion for an order of dismissal and on Claimant's motion to strike certain affirmative defenses or, alternatively, for permission to file a late claim:
Motion No. M-83314:
1. Notice of Motion and Supporting Affirmation of Renee C. Cote, AAG, with annexed Exhibits;
2. Affidavit in Opposition of Premlata Zaveri, with annexed Affirmation of Paul H. Reither, Esq. and Exhibits;
This affirmation references a "cross motion" purportedly commenced by Claimant to resolve some discovery matters. This issue is now moot. In any event, because this Court chooses to resolve such matters without the necessity of a formal motion, the Clerk's Office was directed to refrain from assigning a motion number or otherwise setting up this request for relief as a formal motion.
3. Reply Affirmation of Renee C. Cote, AAG, with annexed Exhibits; Motion No. M-83497:
4. Notice of Motion and Supporting Affirmation of Paul H. Rethier, Esq, with annexed Exhibits;
5. Affirmation in Opposition of Renee C. Cote, AAG, with annexed Exhibits; and
6. Reply Affidavit in Support of Motion of Premlata Zaveri, with annexed Exhibit
Filed papers: Claim -Answer
This medical malpractice action arose when Claimant went to the Carol M. Baldwin Breast Care Center at Stony Brook University Hospital [the Center] in May 2010 for diagnostic testing. She sought treatment because she had been told that a mammogram, which had been taken earlier at a different facility, had shown "suspicious" lumps in her right breast (Zaveri affidavit, ¶ 1). An image-guided fine needle biopsy was performed at the Center. Subsequently she was told, either by the Center or by her family doctor, that the biopsies were negative and there was no cancer present. She was advised to return for a follow-up in one year but informed that no other treatment or testing was necessary. She received this information at some point in May 2010. As it turns out, there was no further contact between Claimant and the Center after this information was communicated to her.
In February 2011, she noticed that the lumps in her breast were larger and beginning to be painful, and she made an appointment at the Center for an examination later that month. The day before her appointment, however, she received a call from the Center informing her that her health insurance was no longer accepted at that facility, and the appointment was cancelled. Claimant was then directed by her primary physician to Patchogue Medical Arts Radiology, where a mammogram and ultrasound were performed on March 1, 2011 and core biopsies of both breasts were performed on March 2nd. In mid-March, Claimant was advised that the lumps were malignant and that she had stage two cancer. She subsequently underwent chemotherapy, bilateral radical mastectomies and extended radiation. She developed Lymphodemia, which she states will permanently affect her right arm.
The instant claim is based on Claimant's allegations that the Center's medical staff members were negligent when they failed to diagnose her cancer in May 2010. As soon as she learned in March 2011 that she did have cancer, in addition to beginning aggressive treatment for the condition, Claimant promptly consulted an attorney (Zaveri affidavit, ¶ 10). A notice of intention to file a claim was served on Defendant on April 28, 2011, approximately 45 days after the date the malignancy was discovered. The claim itself was filed with the Court on May 31, 2012 and served on Defendant a few days later. In its answer, Defendant's fourth affirmative defense alleged that the action was untimely as neither the notice of intention nor the claim were served within 90 days of the claim's accrual. Defendant now moves for an order of dismissal on that ground.
Claimant challenges the fashion in which this affirmative defense was stated (Zaveri affidavit II § 14). While the statement could have contained more detail, it satisfies the statutory requirement of particularity in connection with the affirmative defense of untimeliness (Scalise v State of New York, 210 AD2d 916 [4th Dept 1994]; Sinacore v State of New York, 176 Misc 2d 1 [Ct Cl 1998]). Claimant also had the right to demand a bill of particulars with respect to affirmative defenses.
Motion to Dismiss; Motion to Strike Affirmative Defense
Claimant asserts that the action is timely because the notice of intention was served "within the 90 day period of the claimant having discovered that she did in fact have breast cancer" (Claim ¶ 18). In her affidavit, she states, "It would be a total injustice to dismiss my claim since I had no knowledge, or reason to believe that I had cancer after receiving a clean bill of health from the Breast Center" (Zaveri affidavit, ¶ 5). She argues that a tort action does not accrue until the injured party knows, or should have known, that there was an injury, permitting all elements of the tort to be truthfully alleged. The authorities on which she relies, however, do not provide support for the position that she has taken: that a claim based on allegations of medical misdiagnosis does not accrue until the patient learns that the physician's diagnosis was in error (see Kronos, Inc. v AVX Corp., 81 NY2d 90 [1993][damage to plaintiff is an element of the tort of tortious inducement to breach a contract]; Snyder v Town Insulation, 81 NY2d 429 [1993] [cause of action based upon exposure to toxic insulation accrued on the date of installation, not the date of last exposure]; Serhan v City of New York, 2008 WL 8724511 [Sup Ct, Queens County 2008] [petitioner did not provide acceptable excuse for failure to comply with time limitation of General Municipal Law § 50-e]).
The accrual date and statute of limitations for actions based on medical, dental or podiatric malpractice is established by statute. CPLR 214-a provides a two year, six months statute of limitations for actions for medical, dental or podiatric malpractice. The time for instituting an action is to be calculated from the date of the "act, omission or failure complained of" or, where there has been continuous treatment for the same illness, injury or condition, the date of the last treatment. The only exception to this rule of accrual is where the action is based on "the discovery of a foreign object in the body of the patient," in which case the action may be commenced within one year of the date of discovery of the foreign object or "of facts which would reasonably lead to such discovery, whichever is earlier." In New York, "the accrual of a cause of action for medical malpractice [that is] not based upon the discovery of a foreign object in the body of the patient is measured from the date of the occurrence of the act, omission or failure complained of as opposed to the date of the discovery of the injury" (Candelaria v Erickson, 2005 WL 1529566 [SD NY 2005]
The continuous treatment exception is not applicable in the situation presented here. The statute itself states that it does not include "examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient's condition." Therefore, even if Claimant had been able to keep the February 2011 appointment, that contact alone would not have extended the accrual of any claim based on the alleged misdiagnosis that occurred in May 2010. In addition, the Court of Appeals has made it clear that the time for instituting an action based on failure to find or properly identify a tumor is not extended even when the physician continues to treat the patient for unrelated conditions (Nykorchuck v Henriques, 78 NY2d 255 [1991]).
Nor can the "foreign body" exception be relevant here, because the gravamen of this claim is misdiagnosis: allegations that the physician negligently failed to detect a condition within the patient's body that required treatment or surgical removal (LaBarbera v New York Eye & Ear Infirmary, 91 NY2d 207, 209 [1998] [to qualify for the exception, the object in the patient's body must be "foreign" and "left behind"]; Rodriguez v Manhattan Med. Group, 77 NY2d 217, 223 [1990][an action is one for misdiagnosis even where the physician failed to find and remove a foreign object, an IUD, that had previously been intentionally implanted in the patient's body]). There can be no dispute, therefore, that Claimant's malpractice claim against the medical staff of the Center accrued in May 2010, when the alleged misdiagnosis was made and conveyed to her. Due process and other constitutional objections, to which Claimant refers, are discussed at length in Helgans v Plurad (255 AD2d 554[2d Dept 1998], appeal dismissed 93 NY2d 882 [1999], lv dismissed, lv denied 93 NY2d 994 [1999]).
In all jurisdictions, the "discovery rule" of accrual, which Claimant argues the Court to apply, is seen as an exception to this general rule that ignorance of the fact that a cause of action exists does not prevent the running of the statute of limitations. "Discovery rule" exceptions are created by statutes or implied by court when they determine that an element of the tort is not apparent and therefore cannot be truthfully alleged. As an exception to the general common law rule, it must be strictly construed. (See generally 54 Corpus Juris Secundum, Limitations of Actions § 136 [2013] []; see also e.g. Pauk v Board of Trustees of City University of New York, 654 F2d 856 [2d Cir 1981] [42 USC § 1983 claims accrue when the plaintiff knows or has reason to know of the injury that is the basis of his action]).
Unfortunately, it is almost certain that in some instances the general rule that ignorance of a cause of action does not affect the running of its statute of limitations will result in a harsh outcome for some litigants. Despite this, the Legislature did not carve out an exception for such situations when it drafted, and subsequently amended, CPLR 214-a (Added L 1975, ch 109, § 6. Amended L 1985, ch 760, § 3; L 1986, ch 485, § 3.). Earlier, when the Law Revision Commission forwarded to the Legislature a recommendation that New York adopt the "discovery rule,"the Legislature took no action (1962 Report of NY Law Rev Comm pp 231-232). While there is no dispute that the reasons for judicial and legislative recognition of the continuous treatment and foreign object exceptions are very similar to the considerations that Claimant argues here (see, Siegel, New York Practice § 42 [5th ed.]; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 429 [1969]; Borgia vCity of New York, 12 NY2d 151, 156 [1962]), in New York the only recognized exceptions for malpractice actions are those expressly provided for in the statute.
It should be noted that the "discovery rule" has been adopted in some other jurisdictions (see 54 Corpus Juris Secundum, Limitations of Actions § 136 [2013] [a discovery rule may be imposed by statute or implied by the courts]; see also Pauk v Board of Trustees of City University of New York, 654 F2d 856, supra).
Consequently, applying well-settled New York law, Defendant's motion to dismiss Claim No. 121374 must be granted and that portion of Claimant's motion that seeks to strike Defendant's affirmative defense must be denied.
Motion for Permission to File a Late Claim
Turning to Claimant's request for permission to file an untimely claim, pursuant to Court of Claims Act § 10 (6), late claim relief is available only if the motion is brought within the applicable CPLR Article 2 statute of limitations. As discussed above, causes of action based on medical malpractice must be commenced within two and one-half years of the negligent act, omission or failure. In this case, that took place sometime in May 2010, when the Center's staff analyzed the biopsy results and informed Claimant that she was free of cancer (CPLR 214-a). The applicable CPLR Article 2 statute of limitations ran in November 2012 and consequently
Claimant's motion to late file, which was initially filed and served in May 2013, is untimely and must be denied.
Claimant's alternative request for permission to file a claim sounding in contract or breach of warranty must also be denied. Absent unusual circumstances, such as express promises for a specific result, that are not present here, a medical malpractice action cannot be recast as either of these causes of action (Leighton v Lowenberg, 103 AD3d 530 [1st Dept 2013]; Carter v Isabella Geriatric Ctr, Inc., 71 AD3d 443 [1st Dept 2010]; Pagan v Quinn, 51 AD3d 1299 [3d Dept 2008]).
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Defendant's motion is granted and claim No. 121374 is dismissed; Claimant's motion to strike Defendant's fourth affirmative defense is denied; and Claimant's motion for permission to late file is denied.
December 5, 2013
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims