Clifford v. Kates
| Decision Date | 19 April 2017 |
| Docket Number | No. 2013/14122.,2013/14122. |
| Citation | 58 N.Y.S.3d 873 (Table) |
| Parties | Darlene CLIFFORD, Plaintiff, v. Stephen L. KATES, M.D., Highland Hospital of Rochester and University of Rochester, Defendants. |
| Court | New York Supreme Court |
David L. Murphy, Esq., Trevett Cristo, for the Plaintiff.
Dennis Gruttadaro, Esq., Brown, Gruttadaro, Gaujean, Prato, LLC, for the Defendant Stephen L. Kates, M.D.
Jennifer M. Schwartzott, Osborn, Reed & Burke, LLP, for the Defendants Highland Hospital of Rochester and University of Rochester.
The Plaintiff commenced this medical malpractice action by the filing of a summons and complaint on December 16, 2013 alleging negligence arising out of a total right hip replacement surgery on July 9, 2008, in an operation by Defendant Dr. Stephen L Kates. Plaintiff's theory of liability against Defendants Highland Hospital and University of Rochester is vicarious liability for the acts and omissions of Dr. Kates; indeed no other practitioner who treated with the Plaintiff was individually named nor does it appear that Plaintiff alleges any independent act of negligence committed by anyone other than Dr. Kates.
Prior to 1995, Highland Hospital established a resident orthopedic clinic located at Highland Hospital. The purpose of the clinic was to provide care for patients who may not otherwise have the financial means to receive care. The resident clinic operated one day a week and was staffed by private attending physicians who had privileges, by faculty members at the University of Rochester, and by resident physicians who would rotate through the clinic and work under the supervision of the private attendings and faculty members.
On September 19, 2007, Plaintiff met with Dr. Kates at the clinic. During this visit, Dr. Kates advised Plaintiff she had significant osteoarthritis
and needed a total right hip replacement. Dr. Kates performed the total right hip replacement surgery at Highland Hospital on July 9, 2008. On July 30, 2008, Dr. Kates saw the Plaintiff at the clinic for a post-operative visit. During this visit, Plaintiff complained of pain starting in her hip and lower back, which extended down to her right foot.
From the time of Plaintiff's initial consultation on September 19, 2007 through August 31, 2008, Dr. Kates was a private physician with privileges at Highland Hospital; on September 1, 2008, Dr. Kates became a full time employee of the University of Rochester. After September 1, 2008, the following visits occurred:
After her last visit to the clinic on January 14, 2009, the Plaintiff does not go back to the clinic again until January 26, 2011. During her absence from the clinic, Plaintiff continued to treat with her primary care physician, Dr. Dickinson, at Highland Family Medicine.
As early as September 2008, Plaintiff testified in her deposition that she actively began looking for another doctor because she didn't "believe Dr. Kates anymore." She testified she made appointments at a couple of different facilities, including Rochester General Hospital and Canandaigua Orthopedics, but that ultimately every specialist she talked to responded that she "needed a revision but nobody wanted to touch ... [her]." In recounting her January 2009 visit, she thought Dr. Kates "was crazy in the head" because he advised her that contrary to what she thought, it was her left leg that was longer and not her right leg.
During her two year absence from the clinic Plaintiff executed two HIPAA releases on May 9, 2010, directed to Strong Health Department of Orthopaedics and Rehabilitation and to the University of Rochester Orthopaedic Associates of Rochester. These releases were sent to the recipients together with a cover letter dated on May 24, 2010 from Plaintiff's attorneys. The releases authorized the release of information to Plaintiff's attorneys. In these releases, in box 10 entitled "Reason for release of information," the choice "Other" is checked, and the reason given is "Litigation." In box 11, the date of expiration for the HIPAA authorization was "end of litigation."
On November 8, 2010, Plaintiff executed a third release directed at Dr. Kates, which was sent with a cover letter from Plaintiff's counsel dated November 15, 2010. The releases authorized the release of information to Plaintiff's attorneys. In this release, in box 10 entitled "Reason for release of information," the choice "Other" is checked, and the reason given is "Litigation."
The last time the Plaintiff saw Dr. Kates was at the clinic on January 26, 2011. Plaintiff admitted she "flipped out" at Dr. Kates during that visit, indicating she was unhappy with his care and treatment. The Plaintiff went back to the clinic 4 times after her last visit with Dr. Kates, but at no point did she go and see Dr. Kates:
Dr. Kates, Highland, and University of Rochester have moved for summary judgment, Both sets of Defendants argue that the action should be dismissed on statute of limitations grounds based upon the Plaintiff's failure to timely commence the action. Dr. Kates also moved for summary judgment on standard of care.
A party seeking summary judgment pursuant to CPLR 3212 must make a prima facie showing of entitlement to judgment as a matter of law and submit sufficient evidence to demonstrate the absence of any material issue of fact ( Iselin & Co. Inc. v. Mann Judd Landau 71 N.Y.2d 420 [1988] ). The Court must view the evidence presented in the light most favorable to the nonmoving party ( Russo v. YMCA of Greater Buffalo, 12 A.D.3d 1089, 784 N.Y.S.2d 782 [4th Dept 2004] ). Further, a moving defendant must affirmatively demonstrate the merits of its defense and cannot meet its burden in moving for summary judgment by pointing to gaps in plaintiff's proof ( George Larkin Trucking Co. v. Lisbon Tire Mart, Inc., 185 A.D.2d 614, 585 N.Y.S.2d 894 [4th Dept 1992] ). If the proponent demonstrates entitlement to summary judgment, the opposing party must then demonstrate, generally by admissible evidence, the existence of an issue of fact requiring a trial (Zuckerman v. City of New York 49 N.Y.2d 851 [1985] ).
The applicable statute of limitations period for a medical malpractice action is 2 and½ years and accrues "from the act, omission or failure complained of, or the last treatment where there is continuous treatment for the same illness" ( CPLR 214–a ). On a motion for summary, the initial burden is on the defendant to show that the alleged malpractice took place more than 2½ years before the commencement of the action ( Massie v. Crawford, 78 N.Y.2d 516, 519 [1991] ). When that burden is met, the burden then shifts to the plaintiff to establish the applicability of the continuous treatment doctrine (see Perrino v. Maguire, 60 A.D.3d 1477, 1478, 876 N.Y.S.2d 305 [4th Dept 2009] ). If the plaintiff can then demonstrate that received continuous treatment for the same original condition or complaint, the statute of limitations period is tolled until after the plaintiff's last treatment ( Massie v. Crawford, 78 N.Y.2d at 519, 577 N.Y.S.2d 223, 583 N.E.2d 935 ).
Applying the foregoing principles, the Court concludes that defendants sustained their burden on the motion of establishing their entitlement to judgment as a matter of law on the basis of the 2 and½-year statute of limitations of CPLR 214–a (Simons v. Bassett Health Care, 73 AAD3d 1252, 1254 [3d Dept 2010]; Perrino v. Maguire, 6 AD3d at 1476). Plaintiff's complaint stems from the total right hip replacement surgery performed by Dr. Kates on July 9, 2008. The Plaintiff ultimately commenced this action on December 16, 2013—well outside the statute of limitations period.
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