Dorfman v. Schoenfeld

• Decision Date: 10 March 1960
• Citation: 26 Misc.2d 37,203 N.Y.S.2d 955
• Parties: Joan DORFMAN and Murray Dorfman, Plaintiffs v. Julius SCHOENFELD, Defendant.
• Court: New York Supreme Court

Page 955

203 N.Y.S.2d 955

26 Misc.2d 37

Joan DORFMAN and Murray Dorfman, Plaintiffs v. Julius SCHOENFELD, Defendant.

Supreme Court, Special Term, New York County, Part I.

March 10, 1960.

T. Stanley Bloch, New York City (Jerome Golenbock and Donald S. Sherwood, New York City, of counsel), for plaintiffs.

Martin, Clearwater & Bell, New York City (John H. Tovey, Jr., and Frederick L. Flynn, New York City, of counsel), for defendant.

MATTHEW M. LEVY, Justice.

The defendant moves for dismissal of the complaint, pursuant to Rule 107, subd. 5 of the Rules of Civil Practice, upon the ground that the suit is barred by the Statute of Limitations (Civil Practice Act, § 50, subd. 1). The action is for alleged medical malpractice. The complaint was amended after motion, but both sides request that the application be considered upon the basis of the new pleading.

The operation in this instance occurred in New York City on July 4, 1952. It was an appendectomy and it is alleged that, unbeknownst to the plaintiff patient, she remained with an abdomen containing a surgical sponge. Thereafter, she moved to California, where, sometime in April of 1957, she experienced--for the first time, it is asserted--some pain, as a result of which the alleged malpractice was discovered in January of 1958. The action was commenced by patient and her husband in July 1958.

In their answering affidavit, the plaintiffs admit that this is 'a personal injury action to recover damages for mal-practice'. And, in their brief, they recognize that, if the cause of action arose in this state, this suit thereon is time-barred under existing law. But, they argue, there was no cause of action until there was damage, there was no damage here without pain, the pain was first felt in California, and, in consequence, it is the law of that state that determines liability (Poplar v. Bourjois, Inc., 298 N.Y. 62, 80 N.E.2d 334), and thus, as has been held in that state, no cause of action accrued until the 'patient has discovered or by reasonable diligence should have discovered, that a foreign substance was left in his [her] body' (Bowers v. Olch, 120 Cal.App.2d 108, 117, 260 P.2d 997, 1002).

The contention is ingenious, but, as I see it, fallacious. Analysis and analogy must not be ignored. Let me, therefore, examine the argument by presenting what I consider to be a logical example. If the plaintiffs' contention were sound, we should be compelled to hold that a cause of action for brain damage resulting from a vehicular collision does not arise when the contact occurs, but rather when the sequellae of post-concussion syndromes come to light. The contrary, of course, is the established law (Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287, 300-301, 200 N.E. 824, 827, 104 A.L.R. 450).

I hold that the injury here actually occurred--insofar as this defendant's causative acts are concerned--when the operation was complete. ¹ The damage was done then, and not when pain was first felt. Pain is the result of the injury, not the injury itself.

The plaintiffs make a stirring appeal for a change of the New York law in malpractice cases. It is undoubtedly within the competence of the courts to make the change (see Woods v. Lancet, 303 N.Y. 349, 355, 102...