Plummer v. New York City Health and Hospitals Corporation

• Decision Date: 12 July 2001
• Citation: 285 A.D.2d 374,729 N.Y.S.2d 70
• Parties: JERMAINE W. PLUMMER et al., Respondents,<BR>v.<BR>NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Appellant.
• Court: New York Supreme Court — Appellate Division

285 A.D.2d 374

729 N.Y.S.2d 70

JERMAINE W. PLUMMER et al., Respondents,

v.NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Appellant.

Decided July 12, 2001.

Concur — Mazzarelli, Andrias and Lerner, JJ.

While we affirm the result, we differ with the motion court's reasoning. There is no evidence of defendant's wrongfully or negligently inducing reliance by plaintiffs to their detriment, as required for an estoppel (see, Cabreaja v New York City Health & Hosps. Corp., 201 AD2d 319, 321). Brown v City of New York (264 AD2d 493), relied upon by the motion court, is clearly distinguishable on its facts. Also, in finding the question of whether there was continuous treatment irrelevant, the court's reliance upon Matter of Janvier v New York City Health & Hosps. Corp. (162 AD2d 342, lv denied 76 NY2d 711) was misplaced inasmuch as, unlike that case, plaintiff's notice of claim was filed within 10 years of his date of birth, when his cause of action for medical malpractice accrued (see, CPLR 208). Morever, in Janvier, the infant visited the hospital where she was born only for general checkups, immunization and other treatment related to the Erb's Palsy, whereas here questions of fact were presented by the opposing affidavits of plaintiff's mother and doctors as to whether the infant's visits to North Central Bronx Hospital during the period from his birth on May 21, 1985 to October 18, 1990, when plaintiff's notice of claim was filed, constituted continuous treatment for the Erb's Palsy and other injuries suffered as a result of defendant's alleged malpractice.

Williams, J. P., and Friedman, J., dissent in a memorandum by Friedman, J., as follows:

The question presented by this appeal is whether the time to serve a notice of claim may be tolled under a "continuous-treatment-by-an-institution" theory. Specifically, does the nonnegligent treatment rendered by the pediatric and rehabilitation clinics of a New York City Health and Hospitals Corporation (HHC) facility toll the time in which to serve a notice of claim against HHC where the negligent treatment was rendered by the obstetrical unit of that same facility? The Appellate Division, Second Department, seems to have rejected a finding of continuous treatment under such circumstances (see, Pierre-Louis v Ching-Yuan Hwa, 182 AD2d 55) and the Court of Appeals, in Ganess v City of New York (85 NY2d 733), left the question open. The majority, by its affirmance, necessarily adopts the continuous-treatment-by-an-institution theory as a basis for tolling the Statute of Limitations. Because I do not believe that this theory furnishes a basis for a toll, I respectfully dissent.

Plaintiff was born on May 21, 1985 at North Central Bronx Hospital (NCBH), a hospital owned and operated by HHC. In addition to a heart murmur and hydrocele, plaintiff, at the time of his birth, suffered from Erb's Palsy in his left arm and respiratory failure, which allegedly caused brain damage. Immediately after his birth, plaintiff was transferred to the hospital's special care pediatrics nursery where he spent the next 10 days until his discharge. According to Sharon Heron,^[1] plaintiff's mother, during this period of hospitalization plaintiff's pediatrician, Dr. Traeger, explained to her that plaintiff suffered from various medical problems and that damage to his left arm occurred during the birth.

Upon plaintiff's discharge, Dr. Traeger referred him to three different clinics: to treat his cardiac condition, he was referred to Montefiore Hospital Medical Center (Montefiore), a facility unrelated to NCBH; to treat his Erb's Palsy, he was referred to NCBH's Rehabilitation Clinic; and, to address routine health care, he was referred to the hospital's Pediatric Clinic. Thereafter, plaintiff sporadically presented to the various clinics.

In or about September 1988, Ms. Heron advised NCBH that she and plaintiff would be moving to Miami, Florida. In view of this, NCBH informed her that she could seek medical care for plaintiff at Miami Children's Hospital. She was also told that plaintiff's medical records would be forwarded to that hospital upon its request.

Before moving to Florida, plaintiff appeared for several more visits at NCBH, with the last visit occurring in March 1989, when plaintiff presented for possible tuberculosis exposure. After this visit, it appears that plaintiff and his mother moved to Florida, and plaintiff did not present at NCBH again until nine months later, in January 1990, for routine health care. At this visit, the medical record indicates that plaintiff's mother advised NCBH that she and plaintiff had moved back to New York with the intention of living in the Bronx.

After that, plaintiff appeared in May 1990 at the NCBH Pediatric Clinic for a physical examination and immunizations required for his kindergarten class, and in July 1990 at the Pediatric Walk-in Clinic complaining of a scalp infection. For an entire year following the July visit, there is no record of plaintiff presenting at NCBH at all. After this year, plaintiff again appeared sporadically at NCBH for matters ranging from routine health care maintenance to visits for complaints of cough and cold.

As to the litigation posture of this action, on October 18, 1990 (five years before plaintiff's last visit to NCBH), a notice of claim was filed on behalf of plaintiff, alleging that he suffered various injuries because NCBH "failed to render proper medical care and treatment during the prenatal period and the negligent and careless management of labor, delivery, and post natal course of the infant plaintiff." Notwithstanding this broad claim of negligence, after the complaint was served on November 13, 1991, it became clear that plaintiff's claims of negligence were based exclusively upon the events that took place when plaintiff was delivered, i.e., the negligence allegedly committed by the obstetrician or other members of the obstetrical unit at the time of plaintiff's birth.

Thereafter, in August 1999, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff failed to serve a notice of claim within 90 days of the alleged malpractice, a prerequisite to maintaining an action against HHC (see, General Municipal Law § 50-e; McKinney's Uncons Laws of NY § 7401 [2] [New York City Health and Hospitals Corporation Act § 20 (2); L 1969, ch 1016, § 1, as amended]). Plaintiff, in opposing the motion, argued that the notice of claim, although served five years after the alleged malpractice, was nevertheless timely because it was served within 90 days of the last date of a continuous course of treatment by defendant of plaintiff's Erb's Palsy (see, CPLR 214-a; Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 337-338).^[2] I believe that plaintiff's position is without merit and that summary judgment should have been granted in defendant's favor.

I begin with the observation that the alleged malpractice in this case was committed by doctors with the obstetrical unit of NCBH. The continuous treatment upon which plaintiff relies for purposes of tolling his time to file the notice of claim, however, was provided by a completely distinct set of doctors and clinics operated by NCBH. Thus, if the continuous treatment doctrine is to be applicable, there must be some sort of "agency or other relevant relationship" (see, Meath v Mishrick, 68 NY2d 992, 994) that would permit the imputation of treatment from the nonnegligent health care providers to the negligent one. Here, there was no such relationship.

The mere fact that the practitioners who attended to plaintiff's birth and the clinics that subsequently treated him are affiliated with NCBH is insufficient to establish a "relevant relationship" for purposes of imputing treatment (see, Ganess v City of New York, 85 NY2d 733, 738, supra; Meath v Mishrick, supra). Moreover, even if the allegedly negligent practitioners referred plaintiff to the various clinics for ongoing treatment, this would not establish the requisite relationship. In this regard, plaintiff failed to demonstrate that there is a "master-servant or principal-agent relationship" between the obstetrical unit of the hospital and the various clinics where he was subsequently treated (see, Ganess v City of New York, supra; Florio v Cook, 48 NY2d 792, affg 65 AD2d 548). Accordingly, the only possible basis for finding the continuous treatment doctrine applicable would be because the negligent obstetrician who delivered plaintiff and the non-negligent clinics that treated him thereafter all operated under the umbrella of NCBH, an HHC facility. As to this issue, Ganess v City of New York (supra) is instructive.

In Ganess, the infant plaintiff was allegedly injured by the negligence of the delivering obstetrician during his birth. Beginning shortly after his birth, plaintiff visited the rehabilitation clinic of the same hospital, where his condition was monitored and his parents were given instruction in a therapeutic program of home exercises. The majority held that the plaintiff's conclusory assertions that he had been continuously treated since his birth were insufficient to rebut the documentary and testimonial evidence to the contrary. In view of this, the majority did not reach what it termed as the "potentially intriguing idiosyncrasy of [the] case—namely, that the negligence was allegedly committed by an obstetrician at plaintiff's birth, whereas the ensuing 11 years of admittedly nonnegligent treatment were provided by an entirely different set of doctors with a different medical specialty" (id., at 736).

Judge Titone, although agreeing with the majority, wrote separately "to emphasize [his] own serious questions as to whether the most fundamental requirement of the continuous-treatment doctrine—i.e., an unbroken course of treatment by a particular practitioner or closely affiliated group of practitioners —was satisfied here" (id., at 737). In expressing this doubt,...