| Tracy v Vassar Bros. Hosp. |
| 2015 NY Slip Op 05932 [130 AD3d 713] |
| July 8, 2015 |
| Appellate Division, Second Department |
[*1]
| Eileen Tracy, Respondent, v Vassar BrothersHospital, Appellant, et al., Defendants. |
Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner ofcounsel), for appellant.
Wisell & McGee, LLP, Kew Gardens, N.Y. (Nancy M. McGee of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice, the defendantVassar Brothers Hospital appeals, as limited by its brief, from so much of an order of theSupreme Court, Dutchess County (Lubell, J.), dated November 29, 2012, as denied itsmotion pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as assertedagainst it as time-barred.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the motion of the defendant Vassar Brothers Hospital which waspursuant to CPLR 3211 (a) (5) to dismiss the causes of action alleging medicalmalpractice insofar as asserted against it as time-barred, and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed insofaras appealed from, without costs or disbursements.
The plaintiff sought treatment for her right shoulder from the defendant physician,Spyros Panos. On February 5, 2009, Panos performed surgery on the plaintiff's shoulderat the defendant Vassar Brothers Hospital (hereinafter Vassar). On January 26, 2012, theplaintiff commenced this action against Vassar, among others.
Vassar moved pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar asasserted against it, contending that the action was barred by the 2
The Supreme Court should have granted that branch of Vassar's motion which waspursuant to CPLR 3211 (a) (5) to dismiss the causes of action alleging medicalmalpractice insofar as asserted against it. Contrary to the plaintiff's contention, withrespect to the medical malpractice causes of action, the motion was not properly deniedon the ground that discovery might have revealed evidence that would estop Vassar fromraising a statute of limitations defense. In [*2]oppositionto Vassar's motion, the plaintiff argued that, with further discovery, she hoped to be ableto establish that Vassar possessed knowledge of Panos's medical malpractice, and thatthis knowledge, coupled with Vassar allowing Panos to continue his malpractice to thedetriment of other patients, was a fraud perpetrated by Vassar on the public that estoppedit from asserting a statute of limitations defense. However, even if the plaintiff were ableto establish these facts, they would not give rise to an estoppel, since they did not amountto later fraudulent misrepresentations made for the purpose of concealing the former tort(see Saretto v Panos, 120AD3d 786, 787 [2014]; Plain v Vassar Bros. Hosp., 115 AD3d 922, 923 [2014]; Butcher v Panos, 115 AD3d900, 901 [2014]). Therefore, the causes of action alleging medical malpracticeinsofar as asserted against Vassar should have been dismissed as time-barred.
Contrary to Vassar's contention, however, the Supreme Court properly concludedthat, in addition to the medical malpractice allegations, the complaint also set forthallegations of ordinary negligence against Vassar, which were not time-barred. "[T]hedistinction between medical malpractice and negligence is a subtle one, for medicalmalpractice is but a species of negligence and 'no rigid analytical line separates thetwo' " (Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996], quotingScott v Uljanov, 74 NY2d 673, 674 [1989]). "A hospital in a general sense isalways furnishing medical care to patients, but clearly not every act of negligence towarda patient would be medical malpractice" (Bleiler v Bodnar, 65 NY2d 65, 73[1985]). "Conduct may be deemed malpractice, rather than negligence, when it'constitutes medical treatment or bears a substantial relationship to the rendition ofmedical treatment by a licensed physician' " (Scott v Uljanov, 74 NY2d at674-675, quoting Bleiler v Bodnar, 65 NY2d at 72). "By contrast, when 'thegravamen of the complaint is not negligence in furnishing medical treatment to a patient,but the hospital's failure in fulfilling a different duty,' the claim sounds in negligence"(Weiner v Lenox Hill, 88 NY2d at 788, quoting Bleiler v Bodnar, 65NY2d at 73).
Here, the allegations in the complaint pertaining to the number of surgeries Panoswas scheduling for any given day, the allegations that Vassar failed to establishprocedures regarding the number of surgeries that could be scheduled for a given day,and the allegations that Vassar failed to investigate or respond to warnings andcomplaints from its employees regarding Panos's practices generally, all sound inordinary negligence rather than medical malpractice (see Weiner v Lenox Hill, 88NY2d at 788-789; Bleiler v Bodnar, 65 NY2d at 73). In this respect, none ofthese allegations "implicate questions of medical competence or judgment linked to thetreatment of [the plaintiff]" or "depend on an analysis of the medical treatment furnishedto [the plaintiff]" (Weiner v Lenox Hill, 88 NY2d at 788). Accordingly, theSupreme Court properly denied that branch of Vassar's motion which was to dismiss, astime-barred, the causes of action alleging ordinary negligence. Skelos, J.P., Balkin,Chambers and Miller, JJ., concur.