Di Marco v. Hudson Valley Blood Services

• Decision Date: 30 August 1988
• Citation: 532 N.Y.S.2d 488,141 Misc.2d 59
• Court: New York Supreme Court
• Parties: Pasquale Di MARCO and Maria Di Marco, Plaintiffs, v. HUDSON VALLEY BLOOD SERVICES and New York Blood Center, Defendants.

Page 488

532 N.Y.S.2d 488

141 Misc.2d 59

Pasquale Di MARCO and Maria Di Marco, Plaintiffs, v. HUDSON VALLEY BLOOD SERVICES and New York Blood Center, Defendants.

Supreme Court, Bronx County Part IA 2.

Aug. 30, 1988.

Sweeney & Calabrese, White Plains, for plaintiffs.

Killarney, Rein, Brody & Fabiani, New York City, for defendants.

JACK TURRET, Justice:

This is an action wherein plaintiff, Pasquale Di Marco was admitted in January 1985, to the Westchester County Medical Center for cardiac surgery. During the course of the surgery, he received blood transfusions. This blood was allegedly supplied by the sole defendants, herein, Hudson Valley Blood Services ("Hudson Valley") and New York Blood Center ("N.Y.B.C.").

From these transfusions, it is alleged that the plaintiff contracted Acquired Immune Deficiency Syndrome ("AIDS"). In his complaint, plaintiff alleges two causes of action against Hudson Valley and N.Y.B.C. One sounds in medical malpractice. The other is based on negligence.

Defendant's motion seeks dismissal of the complaint based on the argument that the entire action is time barred. Defendant's motion also sought costs and plaintiff cross-moved for costs. Both applications for costs were withdrawn.

Medical malpractice actions have a 2 1/2 year statute of limitations (§ 214-a C.P.L.R.). Negligence has a statute of limitations of 3 years (§ 214 C.P.L.R.). This action was commenced on April 12, 1988. Simple arithmetic would indicate the statute of limitations has run as to both causes of action.

As to the medical malpractice action, plaintiff argues that the "foreign object" and "continuous treatment" exceptions apply to prevent this action from being time barred. If the action is

"based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier" (§ 214-a C.P.L.R.).

The "continuous treatment" doctrine refers to the fact that the 2 1/2 years begins to run from the date of the last treatment where there has been "continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure" (§ 214-a C.P.L.R.).

The Court rejects plaintiff's argument as to the cause of action for medical malpractice. The Court finds a virus contained in the blood used in these transfusions is not what is intended as a "foreign object" (see: Sternberg v. Gardstein, 120 A.D.2d 93, 96, 508 N.Y.S.2d 14). More importantly, the Court finds that this is not a medical malpractice action. As the court held in Twitchell v. MacKay, 78 A.D.2d 125, 127-128, 434 N.Y.S.2d 516,

..., in their complaint plaintiffs have attempted to state alternative theories for recovery. Noteworthy is the fact that they also make inconsistent claims in their several causes of action, for on this appeal they argue that no physician-patient relationship existed between plaintiff Frank Twitchell and defendant MacKay. Consequently, they assert that there can be no claim for medical malpractice. Pleading inconsistent or alternative causes of action is specifically permitted by statute (CPLR 3014; CPLR 3017[a] ) and there is no dispute that an action for personal injuries may be maintained, in the proper case, on the dual theories of medical malpractice or simple negligence where a person is under the care and control of a medical practitioner or a medical facility ( Hale v. State of New York, 53 A.D.2d 1025, 386 N.Y.S.2d 151). "To prove the negligence, in many instances, it will not be necessary to get into the realm of malpractice. Thus, the leaving of an inflammable substance spilled on sheets (Bing v. Thunig, supra ); the application of a scalding hot water bottle to a patient ( Phillips v. Buffalo Gen. Hosp., 239 N.Y. 188, 146 N.E. 199); and electric light left negligently under the sheets by an attendant ( Dillon v. Rockaway Beach Hosp., 284 N.Y. 176, 30 N.E.2d 373); failure to have sideboards placed on the bed (Lee v. Glens Falls Hosp., 265 [266] App.Div. 607, 42 N.Y.S.2d 169; Ranelli v. Society of N.Y. Hosp., 269 App.Div. 906 56 N.Y.S.2d 481); a mistakenly administered blood transfusion ( Necolayff v. Genesee Hosp., 270 App.Div. 648, 61 N.Y.S.2d 832); and a mistaken dispensing of drugs and medicines to patients ( Volk v. City of New York, 284 N.Y. 279, 30 N.E.2d 596) are all cases of negligence easily discernible by a jury on common knowledge." ( Morwin v. Albany Hosp., 7 A.D.2d 582, 584-585, 185 N.Y.S.2d 85). Malpractice of course is negligence but the jury must usually be presented with evidence educed from the testimony of conflicting experts ( McDermott v. Manhattan Eye, Ear & Throat Hosp., 15 N.Y.2d 20, 255 N.Y.S.2d 65, 203 N.E.2d 469; ...