Payette v. Rockefeller University

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SULLIVAN; SULLIVAN
• Citation: Payette v. Rockefeller University, 643 N.Y.S.2d 79, 220 A.D.2d 69 (N.Y. App. Div. 1996)
• Decision Date: 30 May 1996
• Parties: , 110 Ed. Law Rep. 318 Michelle PAYETTE, Plaintiff-Appellant, v. ROCKEFELLER UNIVERSITY, Defendant-Respondent.

Page 79

643 N.Y.S.2d 79

220 A.D.2d 69, 110 Ed. Law Rep. 318

Michelle PAYETTE, Plaintiff-Appellant, v. ROCKEFELLER UNIVERSITY, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

May 30, 1996.

Robert G. Harley, of counsel (Richard Dreyfuss, on the brief, Harley & Browne, attorneys), New York City, for plaintiff-appellant.

Dawn C. DeSimone, of counsel, New York City (Fiedelman & Hoefling, Jericho; and Jacobowitz, Garfinkel & Lesman, attorneys), for defendant-respondent.

Before SULLIVAN, J.P., and MILONAS, ELLERIN, NARDELLI and WILLIAMS, JJ.

SULLIVAN, Justice Presiding.

The issue on this appeal is whether the complaint, asserting a single cause of action against Rockefeller University for the careless, unskillful and negligent design, prescription, supervision and control of a dietary regimen, is governed by the three-year statute of limitations applicable to negligence actions or the two and one-half year statute applicable to medical malpractice actions. The IAS court, finding that the latter applied and that the action was necessarily barred, dismissed the complaint.

On or about June 13, 1990, plaintiff, age 27, a summer research intern at Rockefeller University and pre-medical student at the University of California at Davis, was asked by Rockefeller to participate as a control person in an experimental diet study. Upon admission to Rockefeller University Hospital as a "normal volunteer for HDL turnover studies", she was found to have no particular history of relevant medical illness other than having a urinary tract infection just prior to admission, for which she was taking medication.

Between June 13, 1990 and September 19, 1990, plaintiff received a series of iodine injections as part of the program. She was discharged from the hospital on September 19, 1990 after having participated in three studies: the ethanol Average American Diet, the Average American Diet without ethanol and the American Heart Association Diet Step 2 Diet (twin diet). Upon discharge, she received a four-week supply of potassium iodide, which plaintiff continued to ingest orally through October 1990.

In November 1990, plaintiff, having returned to California, began to experience digestive problems; she found it increasingly difficult to concentrate and complained of fatigue and dryness of hair and skin. She also gained weight, which, with the other symptoms, she attributed to the stress of school work. Eventually, plaintiff was diagnosed as having an enlarged thyroid and hypothyroidism.

Plaintiff commenced this action, alleging personal injury and suffering as a result of the negligent design and supervision of the diet study program, by the September 13, 1993 filing of a summons and complaint, which she served on December 9, 1993. In its answer, Rockefeller interposed the affirmative defense of the bar of the applicable statute of limitations. Plaintiff thereafter moved to strike the defense on the ground that the action was timely commenced within the three-year period applicable to a negligence claim (CPLR 214), which, she argued, controlled since she was complaining of the supervision and control of the research program, including the "negligent administration of chemical substances", as opposed to acts consisting of diagnosis, care or treatment, which, if not consistent with accepted standards, would constitute medical malpractice. Rockefeller cross-moved to dismiss the complaint as time-barred under the two and one-half year statute of limitations applicable to medical malpractice actions (CPLR 214-a). The IAS court denied the motion, granted the cross-motion and dismissed the complaint, concluding that the allegations of negligence were "not claims of simple negligence" but rather acts of a type that required professional skill and judgment and as to which expert testimony would be required. Plaintiff thereafter moved to renew and reargue on the ground, inter alia, that the court applied an improper test in determining whether the claim sounded in negligence or medical malpractice. The motion was denied. Plaintiff appeals from both orders.

A claim sounds in medical malpractice when the gravamen of the complaint is "negligence in furnishing medical treatment to a patient." (Bleiler v. Bodnar, 65 N.Y.2d 65, 73, 489 N.Y.S.2d 885, 479 N.E.2d 230.) "Conduct may be deemed malpractice, rather than negligence, when it 'constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician'." (Scott v. Uljanov, 74 N.Y.2d 673, 674-675, 543 N.Y.S.2d 369, 541 N.E.2d 398, quoting Bleiler v. Bodnar, supra, at 72, 489 N.Y.S.2d 885, 479 N.E.2d 230.) In Spatafora v. St. John's Episcopal Hosp., 209 A.D.2d 608, 609, 619 N.Y.S.2d 118, the Second Department held that when "the incompetence alleged is of a specialized medical nature, deriving from the physician--patient relationship, and substantially related to medical diagnosis and treatment, the action it gives rise to is by definition one for medical malpractice rather than for simple negligence." (See, Papa v. Brunswick Gen. Hosp., 132 A.D.2d 601, 603, 517 N.Y.S.2d 762; Coursen v. New York Hospital-Cornell Med. Center, 114 A.D.2d 254, 256, 499 N.Y.S.2d 52.)

None of the circumstances essential to a cause of action in malpractice, especially the existence of a physician-patient relationship, are present in the instant matter. In her complaint, plaintiff makes no claim of Rockefeller's malpractice in furnishing medical treatment. It is also clear that plaintiff did not consult Rockefeller as a health care provider. Nor did she undergo, as part of any medical treatment, the procedures complained of, i.e., the multiple injections of isotopes of iodine, which she contends were three times the amount approved by Rockefeller's Board of Directors in its protocol. The fact that medical doctors examined and evaluated plaintiff and made notations in Rockefeller's hospital chart as to plaintiff's medical reaction to the diet does not, by itself, indicate the existence of a physician-patient relationship. Furthermore, she does not sue Rockefeller in any capacity other than as the owner, operator and manager of "an institution of higher learning", a characterization which is not contrived for the purpose of pleading a negligence action but rather reflects Rockefeller's reputation as a research institution and the fact that, as such, it devised and conducted the challenged diet study program as part of its ongoing research.

While Rockefeller focuses on certain discrete aspects of the diet study program, which it characterizes as involving typically medical procedures, and emphasizes that physicians performed the acts cited, this is not the essence of plaintiff's claim. The complaint asserts a cause of action based on Rockefeller's alleged negligent creation and implementation of its diet research program. And, while the medical examinations, testing and procedures to which plaintiff was subjected during her participation in the program were conducted by physicians, as the record makes clear, plaintif...