Kamruddin v. Desmond

• Decision Date: 29 April 2002
• Citation: 741 N.Y.S.2d 559,293 A.D.2d 714
• Parties: MOHAMMED KAMRUDDIN, Respondent,<BR>v.<BR>RICHARD W. DESMOND et al., Defendants, and<BR>SANJIV CHOPRA et al., Appellants.
• Court: New York Supreme Court — Appellate Division

293 A.D.2d 714

741 N.Y.S.2d 559

MOHAMMED KAMRUDDIN, Respondent,

v. RICHARD W. DESMOND et al., Defendants, andSANJIV CHOPRA et al., Appellants.

Decided April 29, 2002.

Krausman, Goldstein and Friedmann, JJ., concur.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the order is affirmed; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

In the instant action to recover damages for medical malpractice and lack of informed consent, the plaintiff claims that the appellants improperly treated him with steroids, allegedly resulting in bilateral vascular necrosis of both hips, requiring bilateral hip replacement surgery in October 1996, when he was 25 years old. The course of treatment allegedly occurred from 1994 through October 3, 1995.

Starting in June 1997, the plaintiff demanded copies of his medical records from the appellants, by signed and notarized authorizations. His requests went unanswered until the plaintiff sought court intervention. In February 1998, the appellants were served with an order to show cause in a special proceeding to compel production of the records. The records were ultimately produced on April 3, 1998, the last date before expiration of the statute of limitations. The instant action was commenced in May 1998.

The Supreme Court, after a hearing, determined that the appellants' delay in producing the records constituted intentional misconduct, which precluded the plaintiff from timely commencing the instant action. Based upon that finding, the Supreme Court found that the appellants were equitably estopped from pleading the statute of limitations as an affirmative defense (see Matter of Steyer, 70 NY2d 990; Simcuski v Saeli, 44 NY2d 442; Arbutina v Bahuleyan, 75 AD2d 84). We affirm.

The principle that the appellants' intentional wrongdoing should preclude them from asserting the statute of limitations as an affirmative defense derives from the corollary principle, deeply rooted in our jurisprudence, that no one may take advantage of his or her own wrong (see Matter of Steyer, supra at 993; General Stencils v Chiappa, 18 NY2d 125, 126-127). Where a medical malpractice claim is asserted, the patient's medical records are material to reaching a responsible decision on whether there is grounds for a lawsuit (see Arbutina v Bahuleyan, supra at 86).

The dissent acknowledges that the appellants' conduct was "highly questionable." However, the dissent asserts that in order for equitable estoppel to apply, the plaintiff must assert in the complaint fraudulent concealment of the malpractice and justifiable reliance which prevented the plaintiff from discovering the malpractice. In the instant case, the plaintiff was aware that he may have a cause of action sounding in medical malpractice: that awareness caused him to seek the advice of an attorney, and demand a copy of his medical records in the first instance.

However, equitable estoppel may arise where there is an unreasonable delay in delivering records to an attorney consulted in a suspected case of malpractice (see Arbutina v Bahuleyan, supra at 87; Storey v Sum, 151 AD2d 991, 992-993). The fact that a claim is under investigation despite the intentional concealment does not preclude application of the doctrine of equitable estoppel (see Matter of Steyer, supra). The determinative factor is whether there is purposeful concealment (see Simcuski v Saeli, supra; Chesrow v Galiani, 234 AD2d 9; Storey v Sum, supra at 993).

The dissent asserts that the plaintiff could have commenced an action sounding in medical malpractice, without examining his records, without consulting an expert as to the merits of his claim, and without submitting a certificate of merit pursuant to CPLR 3012-a, on the ground that medical records were requested but not yet produced (see CPLR 3012-a [d]). The dissent further asserts that the plaintiff could have commenced the action without service of a complaint, and then asked the court, in its discretion, to extend the time to serve the complaint pursuant to CPLR 3012 (d). However, the dissent acknowledges that the plaintiff's commencement of the action would have to be based upon a "good faith belief as to the legitimacy of his claim." (At 717.) Indeed, the plaintiff's counsel could have been subject to sanctions pursuant to 22 NYCRR 130-1.1 (a) for asserting a frivolous claim. 22 NYCRR 130-1.1-a (b) provides that "[b]y signing a paper, an attorney or party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the paper or the contentions therein are not frivolous."

The appellants were in a position to know what was in the plaintiff's medical records, and that those records indicated that there was a good faith basis for commencement of the action. However, the plaintiff's attorney did not have the benefit of such hindsight. To impose an obligation on the plaintiff to blindly proceed in face of intentional concealment would allow the wrongdoer to chart the course of the proceedings, and ultimately to profit from his or her own wrongdoing.

The appellants' remaining contention is without merit.

Smith, J., concurs in part and dissents in part, and votes to dismiss the appeal from the decision dated June 22, 2000, and to reverse the order dated June 22, 2000, deny the motion, grant the cross motion, and dismiss the complaint insofar as asserted against the appellants, with the following memorandum, in which Santucci, J.P., concurs.

The key element of the subject appeal is whether the appellants' attorney's failure to comply with the plaintiff's request for his medical records prevented the plaintiff from commencing this action in a timely manner. I respectfully disagree with my colleagues in the majority, and conclude that the appellants' alleged dilatory actions did not excuse the plaintiff from filing this action within the time prescribed in CPLR 214-a, and vote to reverse the order of the Supreme Court and dismiss this complaint.

Initially, it is correct that equitable estoppel may be applied to extend the period under the statute of limitations in medical malpractice cases, particularly when the medical professional lied to conceal the malpractice (see Simcuski v Saeli, 44 NY2d 442; Cassidy v County of Nassau, 84 AD2d 742). However, it must...