Putter v. North Shore University Hosp.

• Decision Date: 16 November 2006
• Citation: 858 N.E.2d 1140,7 N.Y.3d 548
• Parties: Beatrice PUTTER, Individually and as Executrix of Milton Putter, Deceased, Respondent, v. NORTH SHORE UNIVERSITY HOSPITAL et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

858 N.E.2d 1140

7 N.Y.3d 548

Beatrice PUTTER, Individually and as Executrix of Milton Putter, Deceased, Respondent, v. NORTH SHORE UNIVERSITY HOSPITAL et al., Appellants.

Court of Appeals of New York.

November 16, 2006.

Martin Clearwater & Bell LLP, New York City (Ellen B. Fishman, Anthony M. Sola and Rosaleen T. McCrory of counsel), for appellants.

Jacob D. Fuchsberg Law Firm, LLP, New York City (Alan L. Fuchsberg and Danielle George of counsel), for respondent.

OPINION OF THE COURT

CIPARICK, J.

The issue presented in this medical malpractice action is whether plaintiff is entitled to invoke the doctrine of equitable estoppel to toll the 2½-year statute of limitations. We conclude, as a matter of law, that she may not and that defendants' motion pursuant to CPLR 3211(a)(5) to dismiss for failure to timely commence the action was properly granted.

Milton Putter^* had quadruple bypass surgery at defendant North Shore University Hospital in November 1993. Defendant Dr. Michael Hall performed the surgery. Several weeks later, during routine postoperative testing by his primary care physician Dr. Leslie Cooperman, Putter learned that his liver enzymes were elevated. Following additional tests, including a liver biopsy, Putter was diagnosed with hepatitis C—a condition he did not have prior to the surgery. At his examination before trial, Putter testified that Dr. Cooperman had opined that he most likely contracted the disease during surgery. Moreover, Dr. Cooperman advised Putter that another of his patients had recently contracted hepatitis C—likewise after an operation performed by Dr. Hall at North Shore. Putter's three sons, who are medical professionals—two physicians and one physician's assistant—also concluded that Putter had contracted the disease in either the hospital or the operating room. In fact, when asked at his deposition if he had spoken with his sons about whether he was infected with hepatitis C during the surgery, Putter responded, "I think I did and it seemed pretty obvious."

Based on this information, in 1994, Putter contacted Dr. Bruce Farber, chief of infectious diseases at North Shore. Putter inquired as to how he had contracted hepatitis C, since he had not received any blood products during his surgery. Farber allegedly told him that "there are a percentage of people who get Hepatitis C from quote unknown sources." Putter later asserted in an affidavit that Farber had told him that his was a case where the hepatitis C was of unknown origin. Putter did not pursue any further investigation.

In 2002, long after the 2½-year statute of limitations had expired, the New York State Department of Health (DOH) and the Nassau County DOH contacted Putter and informed him that North Shore was under investigation. The County DOH wrote a letter to the State DOH stating that it had identified 10 patients who had developed hepatitis C after cardiac surgery at North Shore between 1993 and 2001. Eight of those patients had surgery performed by the same doctor—Dr. Hall. The County DOH letter also stated that North Shore was aware of three of the cases, but did not report them to either DOH until after the investigation began. The letter further stated that several individuals at the hospital, including the director of infection control, had been aware for several years that the surgeon had hepatitis C. Putter also asserted that DOH advised him that epidemiological testing had revealed that he and Dr. Hall had the same type hepatitis C.

Putter commenced this suit in August 2002 alleging causes of action including medical malpractice, lack of informed consent and negligent hiring. Defendants answered and subsequently moved to dismiss the complaint pursuant to CPLR 3211(a)(5) for failure to commence the action within the applicable statute of limitations. Putter opposed the motion, arguing that defendants should be equitably estopped from raising the statute of limitations as a defense. Supreme Court granted defendants' motion to dismiss, finding that Putter had sufficient timely knowledge to place him under a duty to inquire and to determine the relevant facts before the statute of limitations expired.

A majority of the Appellate Division reversed and reinstated the complaint. The Court found that although Putter did not have enough information to defeat defendants' motion, dismissal of the complaint was premature because with additional discovery under CPLR 3211(d) Putter might be able to demonstrate that equitable estoppel was appropriate. Two Justices dissented and voted to affirm, finding that Putter did not establish that he was entitled to equitable estoppel, in that he did not demonstrate any active concealment by defendants or that he justifiably relied on any misrepresentations. The Appellate Division granted defendants leave to appeal, certifying the following question: "Was the decision and order of this court dated January 10, 2006, properly made?" We answer the question in the negative and now reverse.

We have recently reaffirmed that equitable estoppel will preclude a defendant from using the statute of limitations as a defense "`where it is the defendant's affirmative wrongdoing ... which produced the long delay between the accrual of the cause of action and the institution of the legal proceeding'" (Zumpano v. Quinn, 6 N.Y.3d 666, 673, 816 N.Y.S.2d 703, 849 N.E.2d 926 [2006], quoting General Stencils v. Chiappa, 18 N.Y.2d 125, 128, 272...