De Leon by De Leon v. Hospital of Albert Einstein College of Medicine

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SULLIVAN; CARRO
• Citation: De Leon by De Leon v. Hospital of Albert Einstein College of Medicine, 566 N.Y.S.2d 213, 164 A.D.2d 743 (N.Y. App. Div. 1991)
• Decision Date: 05 February 1991
• Parties: Hector De LEON, an infant by Joyce De LEON, his mother and natural guardian, and Joyce De Leon, individually, Plaintiffs-Respondents, v. HOSPITAL OF the ALBERT EINSTEIN COLLEGE OF MEDICINE and Montefiore Hospital and Medical Center, Defendants-Appellants.

Page 213

566 N.Y.S.2d 213

164 A.D.2d 743

Hector De LEON, an infant by Joyce De LEON, his mother and natural guardian, and Joyce De Leon, individually Plaintiffs-Respondents, v. HOSPITAL OF the ALBERT EINSTEIN COLLEGE OF MEDICINE and Montefiore Hospital and Medical Center Defendants-Appellants.

Supreme Court, Appellate Division First Department.

Feb. 5, 1991.

Sebastian Randazzo, of counsel (Mitchel Sommer with him on the brief; Randazzo & Giffords, attorneys, Great Neck) for plaintiffs-respondents.

Edward J. Guardaro, Jr., of counsel (Leah C. Greenman and Betty L. Atlas with him on the brief; Bower & Gardner, attorneys, New York City) for defendants-appellants.

Before SULLIVAN, J.P., and CARRO, WALLACH and RUBIN, JJ.

CARRO, Justice.

Upon entering a hospital, a patient is entitled to expect appropriate and adequate medical treatment from the hospital and its medical staff and to be generally free from risk of harm. Failure to meet the former expectation gives rise to a claim of medical malpractice, while violation of the latter results in a claim sounding in common-law negligence. Accordingly, while a cause of action alleging medical malpractice on the part of a doctor, nurse or hospital must ordinarily be brought within the two and one-half year statute of limitations applicable to medical malpractice actions, a cause of action alleging that the hospital was negligent in its hiring of such an employee, who subsequently commits malpractice, is subject to the three-year statute of limitations applicable to negligence actions.

The underlying facts of this case concern the birth of the infant plaintiff, Hector De Leon, who was born on September 4, 1977 to plaintiff Joyce De Leon at the Hospital of Albert Einstein College of Medicine ("Einstein"), a division of defendant Montefiore Hospital and Medical Center. Ms. De Leon contends that at approximately 6:00 a.m. on that date, Hector started to be delivered i.e. his head was visible and partially out of plaintiff's pudendum (external female genitals) without benefit of a doctor to assist in the delivery; however, she claims that a nurse, who was present at this time, "pushed the baby back into the womb." This act, committed by a nurse in Einstein's employ, allegedly resulted in Hector sustaining epiphyseal dysplasia with resultant difficulty in walking, a severe limitation of motion and growth retardation.

Plaintiffs commenced an action by service of a summons and complaint on defendants on or about February 3, 1988. Issue was joined by the service of a verified answer on behalf of defendants on or about March 25, 1988. Plaintiffs served an amended complaint on or about March 31, 1988, to which defendants responded with an amended answer on or about April 14, 1988.

Nine causes of action are set forth in the complaint. These are, respectively, 1) negligent hiring of hospital personnel; 2) an in utero assault upon Hector; 3) a derivative claim by Ms. De Leon for loss of Hector's services as a result of the alleged assault; 4) fraudulent concealment intended to deprive Hector of his right to pursue legal remedies; 5) continuous treatment alleged on behalf of Hector; 6) lack of informed consent based upon defendant's failure to advise Ms. De Leon of risks, hazards and alternative treatments; 7) medical malpractice committed against Hector; 8) fraudulent concealment; and 9) a derivative claim by Ms. De Leon predicated upon the malpractice allegations.

In addition to generally denying plaintiffs' allegations, defendants asserted three affirmative defenses. These are, respectively, statute of limitations, failure to comply with CPLR § 3017(c), and failure to comply with CPLR § 3012-a. Regarding the statute of limitations defense, it is defendants' contention that the entire action sounded in medical malpractice, and was therefore time barred by the 2 1/2 year statute of limitations provided for in CPLR § 214-a; under CPLR § 208, this limitation is extended during infancy for a maximum of 10 years.

Insofar as a malpractice action is concerned, a summons and complaint served February 3, 1988 would exceed such a time period, where the alleged cause of action accrued on September 4, 1977. However, as to the cause of action sounding in negligence, a three year statute of limitations would initially be applicable under CPLR § 214; moreover, the 10 year maximum tolling period discussed above does not apply, but would instead expand to 21 years and expire on September 4, 1998. CPLR § 208; see also, Joseph M. McLaughlin, Practice Commentaries to McKinney's CPLR, C. 208:1 pp. 386-387; cf. Davis v. St. Joseph's Children's Services, 64 N.Y.2d 794, 795-796, 486 N.Y.S.2d 914, 476 N.E.2d 313 (1985).

By notice of motion dated August 23, 1989, plaintiffs moved for an order dismissing the statute of limitations affirmative defense, in view of the fact that the action sounds in both negligence and medical malpractice. Among the papers submitted by plaintiffs was an affirmation by Sidney Siegel, M.D., a disinterested medical witness, which states that "[i]t is my opinion that the act of the nurse was solely a negligent and assaultive act and no way connected with any nursing or medical treatment of the plaintiff or infant plaintiff." Defendants cross-moved to dismiss alleging, inter alia, the entire action as time-barred, primarily asserting that plaintiffs' claims sounded solely in medical malpractice.

Supreme Court granted plaintiffs' motion and denied defendant's cross-motion. We initially note that the motion court's decision did not expressly address the merits of the affirmative defenses of failure to comply with CPLR § 3017(c) and CPLR § 3012-a, but rather focused on the statute of limitations issue. We therefore read the decision of that court to sub silentio hold that these other defenses were meritless. For the reasons later to be stated, we affirm that portion of the court's order which dismissed these two affirmative defenses. Holding that plaintiffs timely commenced the within action, the court ruled that the entire action was grounded in simple negligence principles. Relying upon our decision in Coursen v. New York Hospital-Cornell Medical Center, 114 A.D.2d 254, 256, 499 N.Y.S.2d 52 (1st Dept.1986), the court first held that "liability may be imposed upon a hospital for its failure to employ competent staff for the treatment of patients." The court further ruled that "neither specialized medical knowledge nor professional expert testimony is necessary to determine whether the nurse acted in a reasonably prudent manner."

We agree with Supreme Court that the negligent hiring cause of action sounds in negligence, and was thus timely brought. However, we are of the view, and now hold, that the remaining causes of action do, as defendants assert, sound in medical malpractice, and must therefore be dismissed as time-barred by the shorter statute of limitations applicable to such actions.

As the Court of Appeals recently reiterated in Scott v. Uljanov, 74 N.Y.2d 673, 675, 543 N.Y.S.2d 369, 541 N.E.2d 398 (1989), the essential question to be answered in determining the applicable statute of limitations is whether "the conduct at issue constituted an integral part of the process of rendering medical treatment to ... [the patient]." For a cause of action to survive the shorter statute of limitations applicable to medical malpractice and continue to be viable under the longer statute of limitations applicable to negligence, the gravamen of the complaint should not be negligence in furnishing medical treatment or conduct which bears a substantial relationship to the rendition of medical treatment by a licensed physician, but rather must point to "the hospital's failure in fulfilling a different duty." Bleiler v. Bodnar, 65 N.Y.2d 65, 72-73, 489 N.Y.S.2d 885, 479 N.E.2d 230 (1985). Courts must therefore "look for the reality and the essence of the action and not its mere name." Tighe v. Ginsberg, 146 A.D.2d 268, 271, 540 N.Y.S.2d 99 (4th Dept.1989), quoting, Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 264, 11 N.E.2d 902. Where "[n]either special medical knowledge nor professional expert testimony is necessary to determine" the nature of the duty to the plaintiff which has allegedly been breached, and whether or not due care was exercised, an action sounds in simple negligence. Coursen v. New York Hospital-Cornell Medical Center, 114 A.D.2d 254, 257, 499 N.Y.S.2d 52 (1st Dept.1986); Bleiler v. Bodnar, supra, 65 N.Y.2d at 72, 489 N.Y.S.2d 885, 479 N.E.2d 230; compare, Huntley v. State of New York, 62 N.Y.2d 134, 136-137, 476 N.Y.S.2d 99, 464 N.E.2d 467 (1984).

Mindful of these tenets, we find that we cannot agree with plaintiffs that in determining whether the nurse's acts constituted negligent...