Plummer v. NY HEALTH & HOSPS.

• Decision Date: 11 June 2002
• Citation: 98 N.Y.2d 263,774 N.E.2d 712,746 N.Y.S.2d 647
• Parties: JERMAINE W. PLUMMER, an Infant, by His Mother and Natural Guardian, SHARON P. HERON, et al., Respondents, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Appellant.
• Court: New York Court of Appeals Court of Appeals

98 N.Y.2d 263

774 N.E.2d 712

746 N.Y.S.2d 647

JERMAINE W. PLUMMER, an Infant, by His Mother and Natural Guardian, SHARON P. HERON, et al., Respondents, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Appellant.

Court of Appeals of the State of New York.

Argued April 30, 2002.

Decided June 11, 2002.

Michael A. Cardozo, Corporation Counsel, New York City (Grace Goodman and Larry A. Sonnenshein of counsel), for appellant.

Kramer, Dillof, Livingston & Moore, New York City (Matthew Gaier and Norman Bard of counsel), for respondents.

Chief Judge KAYE and Judges LEVINE, CIPARICK, WESLEY, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

SMITH, J.

On this appeal, plaintiffs ask this Court to extend the continuous treatment doctrine from a single physician or related physicians to continuous treatment by an institution. Because the course of the infant's treatment was not truly continuous, we reverse without reaching the question of whether continuous treatment by an institution is a cognizable theory excusing the untimely filing of a notice of claim.

Infant plaintiff was born on May 21, 1985 at North Central Bronx Hospital (North Central), one of the hospitals owned and operated by defendant Health and Hospitals Corporation (HHC). Medical records indicate plaintiff was essentially "born lifeless," and that at birth, he suffered from respiratory failure, which allegedly caused brain damage affecting learning and speech development, and Erb's Palsy in his left arm. Plaintiff was intubated and brought to the special care nursery/neonatal intensive care unit where he remained throughout his 10-day hospitalization.

After plaintiff's discharge, he was treated by three different clinics: (a) Montefiore Hospital Medical Center (Montefiore), a facility unrelated to North Central, for his cardiac condition; (b) North Central's Pediatric Rehabilitation Medicine Clinic for his Erb's Palsy; and (c) North Central's Pediatric Clinic for routine health care. In September 1988, plaintiff's mother told the North Central Pediatric Clinic that she intended to relocate to Miami, Florida. The clinic advised plaintiff's mother to seek medical attention from Miami Children's Hospital and that North Central would forward his medical records to the new setting upon request. The clinic also scheduled an appointment for one month later, which plaintiff did not keep. On December 16, 1988, however, before moving to Miami, plaintiff visited the North Central Pediatric Clinic for routine health care and appeared again on March 10, 1989 following exposure to tuberculosis.

Plaintiff next appeared at North Central for routine health care nine months later, in January 1990, by which time he and his mother had moved back to New York. After failing to appear for a speech evaluation lesson on May 14, 1990, plaintiff visited North Central on May 18, 1990 for his kindergarten physical examination and for immunizations. He next appeared at North Central in July 1990 for a scalp infection. Plaintiff failed to appear for a scheduled appointment in August 1990 and was not seen at North Central again until one year later, in July 1991, when—after three missed appointments—his initial speech-language evaluation was finally held. Plaintiff thereafter continued to visit the pediatric clinic at North Central for routine health care.

On October 18, 1990, plaintiffs filed a notice of claim on behalf of the infant plaintiff and his mother, alleging negligence and medical malpractice in the prenatal care and postnatal course of treatment of her son. Plaintiffs served the complaint on November 13, 1991, more specifically directing their allegations toward the alleged obstetrical negligence during delivery.

In August 1999, HHC moved for summary judgment dismissing the complaint on the ground that plaintiffs failed to serve a notice of claim within 90 days of the alleged malpractice, a condition precedent to maintaining the action against HHC (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]). Plaintiffs opposed, arguing in part that the notice of claim, although served five years after the alleged malpractice, was nevertheless timely because it was served while plaintiff was undergoing continuous treatment at North Central for injuries sustained during delivery.

Although finding the continuous treatment doctrine unavailing to plaintiffs, Supreme Court denied defendant's motion on the ground that HHC was equitably estopped from raising untimeliness of the notice of claim because it had waited until the 10-year infancy limitations period had expired before bringing the motion. A divided Appellate Division affirmed, concluding that the limitations period could be extended under the continuous treatment doctrine if the infant plaintiff could show he had been engaged in a continuous course of treatment at the hospital for his birth injuries until the notice of claim was filed. The majority opined that patients should not have to interrupt medical treatment of an injury and undermine the physician-patient relationship in order to commence a medical malpractice action before the statute of limitations expires.

In dissent, two Justices would have granted summary judgment for defendant, concluding that plaintiffs failed to prove an "agency or other relevant relationship" (285 AD2d 374, 377) that would permit imputation of treatment from the...