Putter v. North Shore University Hospital

• Decision Date: 10 January 2006
• Docket Number: 2003-10891.
• Citation: 25 A.D.3d 539,807 N.Y.S.2d 624,2006 NY Slip Op 00144
• Parties: BEATRICE PUTTER et al., Appellants, v. NORTH SHORE UNIVERSITY HOSPITAL et al., Respondents.
• Court: New York Supreme Court — Appellate Division

25 A.D.3d 539

807 N.Y.S.2d 624

2006 NY Slip Op 00144

BEATRICE PUTTER et al., Appellants, v. NORTH SHORE UNIVERSITY HOSPITAL et al., Respondents.

2003-10891.

Appellate Division of the Supreme Court of the State of New York, Second Department.

January 10, 2006.

In an action, inter alia, to recover damages for medical malpractice, the plaintiff Beatrice Putter, individually and as executor of the estate of Milton Putter, appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated August 4, 2003, which granted the defendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) as time-barred.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

Milton Putter, who has died since the commencement of this action, was diagnosed in July 1994 as suffering from hepatitis-C. He and his wife, the plaintiff Beatrice Putter, commenced this action in 2002, alleging that his condition was occasioned by surgery performed in 1993 by the defendant Michael H. Hall at the defendant North Shore University Hospital (hereinafter North Shore). Based upon the two and one-half-year statute of limitations with respect to a medical malpractice action (see CPLR 214-a), the defendants moved, prior to the completion of any discovery other than the depositions of the plaintiffs, to dismiss the complaint pursuant to CPLR 3211 (a) (5) as time-barred. In opposition, the plaintiffs asserted that the running of the statute of limitations should be tolled by reason of the defendants' conduct and that, at this juncture, facts necessary to defeat the statute of limitations defense exist, but could not be stated. The Supreme Court rejected the plaintiffs' argument and granted the defendants' motion. We reverse.

The defendants established that this action was commenced more than two and one-half years after the alleged act of medical malpractice (see Gravel v Cicola, 297 AD2d 620, 620-621 [2002]). Where, however, a patient fails to act within the limitations period because the patient has relied upon material, false representations made by a physician with knowledge of the malpractice, the doctrine of equitable estoppel may be invoked to preclude the physician from asserting the statute of limitations as an affirmative defense (see Simcuski v Saeli, 44 NY2d 442 [1978]). Although the plaintiffs have not, on this record, established their entitlement to equitable estoppel, the court may deny a motion to dismiss the complaint where "facts essential to justify opposition may exist but cannot then be stated" (CPLR 3211 [d]). Because the plaintiffs here demonstrated a reasonable basis to believe that with additional discovery they may be able to develop facts sufficient to sustain their claim of equitable estoppel against the statute of limitations defense, the defendants' motion to dismiss the complaint should have been denied at this juncture.

Mr. Putter did not suffer from hepatitis-C prior to his quadruple bypass surgery in November 1993. The diagnosis was the result of regular blood tests performed shortly after the surgery by Dr. Leslie Cooperman and a subsequent liver biopsy by another physician. Mr. Putter testified that Dr. Cooperman concluded, unremarkably on these facts, that Mr. Putter must have contracted the disease as a result of the surgery, the same conclusion that was reached by Mr. Putter's three medically-educated children. Dr. Cooperman also told Mr. Putter that another patient of Dr. Hall, whose surgery had occurred two weeks before Mr. Putter's surgery, also had contracted hepatitis-C.

Based on his conversations with Dr. Cooperman, Mr. Putter contacted Dr. Bruce Farber, the chief of infectious diseases for North Shore. According to Mr. Putter, Dr. Farber's response to his inquiry was that there are a percentage of people who contract hepatitis-C from unknown sources and that Mr. Putter's was such a case. This was the state of the Putters' information at the time the statute of limitations ran.

Eight years later, in the spring of 2002, the New York State Department of Health and the Nassau County Department of Health informed Mr. Putter that he was one of 10 patients infected with hepatitis-C while in the cardiac service at North Shore during the period from 1993 to 2001, and that all but two of those patients had been treated by Dr. Hall. Three of those cases were known to North Shore but were not reported to the state and county departments of health until their investigation began. The investigation established that Dr. Hall had been infected in 1989 and that Mr. Putter's infection was epidemiologically related to that of Dr. Hall. Critically, correspondence from the Nassau County Department of Health to the New York State Department of Health reflects that "the hospital infection control director and other appropriate individuals knew for several years that the surgeon had been infected with hepatitis C." The Putters commenced this action within months of learning this information.

The information provided by the departments of health was not, by itself, sufficient to defeat the defendants' motion. The documents from the departments of health that were submitted to the Supreme Court did not establish that Dr. Farber knew of Dr. Hall's condition and misrepresented to Mr. Putter that Mr. Putter's infection was of unknown origin. The information did, however, provide a reasonable basis to believe that with further discovery the Putters might be able to establish that Mr. Putter's infection was the result of the negligent failure of the defendants to know or deal with Dr. Hall's condition, that Dr. Farber knew of Dr. Hall's condition at the time he responded to Mr. Putter's inquiry and that, consequently, the defendants should be estopped from relying on the statute of limitations defense.

"[T]he issue of whether [a] defendant should be equitably estopped from asserting the Statute of Limitations as an affirmative defense to [a] plaintiff's complaint is not a question of law, but rather a question of fact, which should be fully developed and determined upon the trial of the action" (Century Fed. Sav. & Loan Assn. of Long Is. v Net Realty Holding Trust, 87 AD2d 858, 858). Here, the information upon which the plaintiffs relied was far more than the mere hope that further discovery would reveal the existence of triable issues of fact. The plaintiffs relied upon specific information developed through an investigation by the appropriate governmental authorities that, upon further discovery, might be sufficient to establish their entitlement to equitable estoppel. Since the plaintiffs satisfied the standard established by CPLR 3211 (d) for denial of the defendants' motion, they were entitled to avoid dismissal of the complaint at this stage of the proceedings and the defendants' motion should have been denied (see Castagnazzi v Schlecker, 129 AD2d 605 [1987]; Schirano v Paggioli, 99 AD2d 802 [1984]).

Unquestionably, a litigant who seeks to...