Dobbins v. Clifford
| Decision Date | 19 April 1972 |
| Citation | 330 N.Y.S.2d 743,39 A.D.2d 1 |
| Parties | Richard L. DOBBINS, Respondent-Appellant, v. Francis J. CLIFFORD, et al., Appellants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Findlay, Hackett, Reid & Wattengel, Niagara Falls, for appellant-respondent Clifford (Paul H. Reid, Jr., Niagara Falls, of counsel).
William E. Smith, Lockport, for appellant-respondent Connette.
O'Shea, Adamson, Reynolds & Napier, Buffalo, for appellant-respondent Dusenberre (Philip J. O'Shea, Buffalo, of counsel).
Garvey, Magner & Sullivan, Buffalo, for respondent-appellant (William J. Love, Jr., Buffalo, of counsel).
Before DEL VECCHIO, J.P., and WITMER, MOULE and HENRY, JJ.
On March 10, 1966 plaintiff underwent an operation for the removal of his spleen. Plaintiff claimed that he discovered in January, 1970 that his pancreas had been severely damaged during the course of the operation, and commenced this action for malpractice on February 23, 1970.
The complaint sets forth four causes of action. In the first cause of action, plaintiff alleges that defendants Dr. Clifford and Dr. Connette started the operation and that defendant Dr. Dusenberre was called in and assisted in and/or finished the operation. It further alleges that during the course of the operation his pancreas was severely damaged due to the negligence of the defendants and that he suffered severe, painful and permanent injuries. The complaint also sets forth causes of action for battery, breach of warranty and uninformed consent.
Defendants moved to dismiss the complaint on the ground it was barred by the three-year statute of limitations for malpractice actions, and plaintiff cross moved for an order permitting him to serve an amended complaint setting forth causes of action for fraud, conspiracy, failure to disclose and Res ipsa loquitur.
The general rule in malpractice actions is that the cause of action accrues on the date the alleged act of malpractice occurs, even though it may not be discovered until after the three-year statute of limitations has run (Schwartz v. Heyden Newport Chemical Corporation, 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142). There are two recognized exceptions to the general rule. One is the 'continuous treatment' exception (Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777) and the other is the 'foreign object' exception (Flanagan v. Mount Eden General Hospital, 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871).
Special Term held that the 'continuous treatment' exception was not applicable to any of the causes of action; that under an extension of the 'foreign object' exception the 'First' cause of action did not accrue until discovery of the injury to the pancreas in January, 1970; and that the 'Second' through 'Eighth' causes of action were for malpractice in care and treatment and did not come under the extension of the 'foreign object' exception.
It is clear that the 'continuous treatment' exception is not applicable to any of the causes of action. Under that exception the treatment must be '* * * for the same or related illnesses or injuries, continuing after the alleged acts of malpractice, not mere continuity of a general physician-patient relationship.' (Borgia v. City of New York (supra), 12 N.Y.2d p. 157, 237 N.Y.S.2d p. 322, 187 N.E.2d p. 779.) The last treatment related to the surgery of March 10, 1966, occurred on August 7, 1966, which was more than three years before the action was commenced.
Prior to the decision in Flanagan v. Mount Eden General Hospital (supra), there would have been no question that plaintiff's action would be barred by the three-year statute of limitations (Schwartz v. Heyden Newport Chemical Corporation (supra)). In Flanagan, it was alleged that surgical clamps were allowed to remain in plaintiff's body after an operation performed in 1958 and were not discovered until 1966 when the action was commenced. The court noted that there was a distinction between malpractice cases involving care and treatment and those where a foreign object is left in a patient's body. The court stated that in foreign object cases,
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Holdridge v. Heyer-Schulte Corp. of Santa Barbara
...A few cases appear to have extended the foreign object discovery rule beyond the facts of the Flanagan case. The court in Dobbins v. Clifford, 39 A.D.2d 1, 330 N.Y. S.2d 743 (4th Dept. 1972) applied this rule to a case where the injury to the plaintiff's pancreas was not discovered until se......
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...1063 (D.Conn.) (plaintiff did not know radioopaque material, injected in spinal myelogram, traveled to his brain); Dobbins v. Clifford, 39 A.D.2d 1, 330 N.Y.S.2d 743 (plaintiff unaware that pancreas damaged during operation on spleen); Ruth v. Dight, 75 Wash.2d 660, 453 P.2d 631 (plaintiff ......
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...was inserted in a patient's hip. Four years later the prosthesis broke, and surgery was required to remove it. In Dobbins v. Clifford, 39 A.D.2d 1, 330 N.Y.S.2d 743 (1972), a patient's spleen was severely damaged during a pancreas operation. In both cases, the discovery rule was applied. Th......
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...in malpractice cases until discovery to a case involving injury to an internal organ occurring during surgery, Dobbins v. Clifford, 39 A.D.2d 1, 330 N.Y.S.2d 743 (4th Dep't 1972), and to one in which a prosthesis unexpectedly broke after its insertion in the patient's hip, Murphy v. St. Cha......