Perez v. Fitzgerald

115 A.D.3d 177, 981 N.Y.S.2d 5

This text of 115 A.D.3d 177 (Perez v. Fitzgerald) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perez v. Fitzgerald, 115 A.D.3d 177, 981 N.Y.S.2d 5 (N.Y. Ct. App. 2014).

Opinion

OPINION OF THE COURT

Sweeny, J.

This issue before us is whether the 21/2 year time limitation in which to commence medical, dental or podiatric malpractice actions set forth in CPLR 214-a applies to chiropractic malpractice actions. For the reasons stated herein, we hold that it does not.

In May 2005, plaintiff was involved in a car accident. She presented to defendant Jane Fitzgerald, D.C., complaining of pain in her neck radiating down to the arms. Dr. Fitzgerald ordered an MRI on May 24, 2005. Dr. Fitzgerald testified that she read and relied on the radiologist’s report, but did not personally review plaintiffs MRI films. The radiologist’s report, which Dr. Fitzgerald received on May 25, 2005, stated that plaintiff had a number of herniated or bulging discs in her neck. There was no indication in that report that the MRI showed a tumor in plaintiff’s spine. The failure to diagnose this condition is the gravamen of this action.

In July 2006, over four visits, Dr. Fitzgerald again treated plaintiff for complaints of neck pain and bilateral hand numbness. During these visits, Dr. Fitzgerald adjusted plaintiff’s neck; however, she did not order another MRI.

From February 2005 through April 2007, plaintiff was also seeing various physicians with complaints of hyperthyroidism, high blood pressure and cholesterol, as well as yearly well-care [179]*179visits with her primary physician. Plaintiff did not tell any of these physicians about her back and neck pain, and hand tingling and numbness. She testified that she considered Dr. Fitzgerald, her chiropractor, for treatment of those issues.

In mid-late 2007, plaintiff saw a new chiropractor, a Dr. Senzamici, with the same complaints of back and neck pain and hand tingling and numbness. Since her condition was not improving, Dr. Senzamici recommended plaintiff see an orthopedist. Plaintiff asked her primary care physician for a referral and also requested that she order an MRI to bring with her to the new doctor.

This second MRI was taken in 2008, and plaintiff brought it to Dr. Olsewski, an orthopedic surgeon. Dr. Olsewski advised plaintiff that she had a tumor in her spine and recommended that she see a neurosurgeon immediately. She subsequently underwent surgery by Dr. Tabaddor.

Thereafter, an action was commenced against Dr. Fitzgerald alleging chiropractic malpractice. The verified complaint, filed in the Bronx County Clerk’s office on June 29, 2009 alleges that defendant treated plaintiff continuously during the period commencing February 7, 2005 through April 20, 2007. The verified complaint further alleges that defendant departed from good and accepted standards of chiropractic practice by, inter alia, failing to exercise the degree of care, professional knowledge and training generally used by chiropractors in the community in the treatment of plaintiff; failing to properly follow up in the treatment of plaintiff; failing to order the appropriate diagnostic studies (i.e., a second MRI); failing to render a proper and timely diagnosis of plaintiffs condition (i.e., the tumor on plaintiff’s spine); improperly performing chiropractic manipulation procedures; and improperly providing chiropractic care and treatment of plaintiff. The action was brought beyond the CPLR 214-a limitation period of 21k years, but within the three-year limitation of CPLR 214 (6).

At the close of plaintiffs case, and again after trial, defendant moved to dismiss the complaint as time-barred, arguing the limitation period of CPLR 214-a was applicable to this action. The court reserved decision for posttrial briefing. The jury found that defendant departed from accepted chiropractic practices by failing to refer plaintiff for a second MRI in July 2006.

Thereafter, defendant renewed her motion to dismiss, arguing that the shortened 21k year statute of limitations of CPLR 214-a has been applied to other health care providers, such as nurses [180]*180and physical therapists and should also be applied to chiropractors. The trial court granted defendant’s motion and dismissed the complaint.

CPLR 214-a provides that “[a]n action for medical, dental or podiatric malpractice” must be commenced within 2V2 years of the alleged negligent act or omission. All other professional malpractice actions are governed by the three-year statute of limitations found in CPLR 214 (6). CPLR 214-a was originally enacted in 1975 as part of a comprehensive plan amending the Public Health Law, Insurance Law, Workers’ Compensation Law, Judiciary Law, Education Law, CPLR and Business Corporation Law. This was done in response to concerns about the high cost and potential unavailability of medical malpractice insurance in New York State (Mem of St Exec Dept, 1975 McKinney’s Session Laws of NY at 1601-1602). Its enactment reduced the time for bringing a medical malpractice action from three years to 2V2 years. The term “medical malpractice” was not defined in the new statute.

In 1985, the Court of Appeals in Bleiler v Bodnar (65 NY2d 65 [1985]) addressed the issues of whether, and under what circumstances, hospitals and nurses fall within the purview of “medical malpractice” and can thus obtain the benefit of the truncated statute of limitations. The Court established the now well-settled rule that a negligent act or omission by a health care professional may receive the benefit of the shortened limitations period if such professional was engaged in conduct “that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician” (id. at 72).

After Bleiler was decided, the legislature twice amended CPLR 214-a to extend the protection of the shorter limitations period to actions for “dental malpractice” (L 1985, ch 760, § 3) and “podiatric malpractice” (L 1986, ch 485, § 3). There have been no further amendments.

The issue as to what categories of health-related activities constitute “medical treatment” or bear a “substantial relationship to the rendition of medical treatment by a licensed physician” under the standard established in Bleiler was addressed by the Court of Appeals in Karasek v LaJoie (92 NY2d 171 [1998]), in which the Court rejected the expansive definition of [181]*181the “practice of medicine” contained in Education Law § 6521

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Bluebook (online)
115 A.D.3d 177, 981 N.Y.S.2d 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-fitzgerald-nyappdiv-2014.