Summary
holding that where informed consent and medical malpractice claims were dismissed as time-barred, "[t]he cause of action for loss of consortium was also properly dismissed, since it is derivative of the other claims"
Summary of this case from Mobius v. Quest Diagnostics Clinical Labs.Opinion
October 21, 1997
Appeal from Supreme Court, Bronx County (Anne Targum, J.).
According to the allegations of the complaint, upon discharge from defendants' care in August 1987, the decedent began to suffer and display the injuries for which recovery is now sought on the theory that neither decedent nor his family had been informed of the possibility that such injuries might result from the proposed cancer treatment. Plaintiffs failed to demonstrate any purposeful concealment on defendants' part, after the decedent's treatment, that would have induced plaintiffs to refrain from filing suit or conducting an investigation into all the relevant facts at the time decedent's health began to deteriorate. Accordingly, there is no basis for equitably estopping defendants from asserting the defense of the two-year six-month Statute of Limitations (CPLR 214-a) applicable to medical malpractice and lack of informed consent claims ( see, Rizk v Cohen, 73 N.Y.2d 98; Simcuski v. Saeli, 44 N.Y.2d 442; McIvor v. Di Benedetto, 121 A.D.2d 519).
Examination of the essence, rather than the form, of the other claims, reveal that in reality they are merely reformulations of the malpractice and lack of informed consent claims, and are therefore also time-barred ( see, Matter of Paver Wildfoerster [Catholic High School Assn.], 38 N.Y.2d 669). The cause of action for loss of consortium was also properly dismissed, since it is derivative of the other claims (see, Clarke v. Mikail, 238 A.D.2d 538).
Concur — Milonas, J.P., Rubin, Mazzarelli and Andrias, JJ.