Ratka v. St. Francis Hospital

• Citation: 44 N.Y.2d 604,407 N.Y.S.2d 458,378 N.E.2d 1027
• Parties: , 378 N.E.2d 1027 John F. RATKA, as Administrator of the Estate of Edward H. Ratka, Deceased, Appellant, v. ST. FRANCIS HOSPITAL et al., Defendants, and Albert I. White et al., Respondents.
• Decision Date: 13 June 1978
• Court: New York Court of Appeals

Page 458

407 N.Y.S.2d 458

44 N.Y.2d 604, 378 N.E.2d 1027

John F. RATKA, as Administrator of the Estate of Edward H Ratka, Deceased, Appellant, v. ST. FRANCIS HOSPITAL et al., Defendants and Albert I. White et al., Respondents.

Court of Appeals of New York.

June 13, 1978.

Robert J. Lackaye, Poughkeepsie, for appellant.

Lawrence T. D'Aloise, Jr., and Gerald Nolan, White Plains, for Albert I. White and another, respondents.

OPINION OF THE COURT

COOKE, Judge.

Based on express legislative enactments and a considerable body of decisional law which has developed through the years, as well as sound public policy considerations, there is no choice but to apply the two-year Statute of Limitations incorporated into the statute creating wrongful death actions by the Legislature.

On May 6, 1972, Edward H. Ratka, after having undergone surgery, died at St. Francis Hospital in Poughkeepsie. At the time of death his wife was 46 years of age and his eldest child, a daughter, was 22 years old. Also surviving were six infants, one of whom, Edward H. Ratka, Jr., reached majority within six months of decedent's passing. The problem in this case arose because more than two years passed with neither the wife nor the two older children seeking appointment as representative of decedent's estate for purposes of instituting a wrongful death action.

It was not until almost three years after decedent's death, specifically on May 2, 1975, when letters of administration were granted to the plaintiff John F. Ratka. On the same day, the summons was delivered for service upon defendants Gordon and White, both physicians, by delivery to the Sheriff and, thereafter and within two weeks, each of these defendants was served (see CPLR 203, subd. (b), par. 5).

The complaint seeks, Inter alia, recovery for conscious pain and suffering, as well as for wrongful death, based on allegations of malpractice. In controversy on this appeal is the affirmative defense of the Statute of Limitations interposed by these defendants.

Supreme Court, relying on Caffaro v. Trayna, 35 N.Y.2d 245, 360 N.Y.S.2d 847, 319 N.E.2d 174, granted plaintiff's motion to strike this affirmative defense. Upon appeal, the Appellate Division reversed, granting defendants' cross motion to dismiss the cause of action for wrongful death. The court reasoned that the two-year Statute of Limitations for such action had not tolled on account of the infancy of the surviving child, John, who was appointed administrator when he reached his majority, because there existed, at the time of decedent's death, next of kin who were under no disability to receive letters of administration. We agree with this result and, accordingly, affirm.

Before considering the merits, because the principle of finality is involved, we comment upon our jurisdiction. A reversal of an order of the Supreme Court, as occurred here, is appealable as of right where the Appellate Division's order "finally determines" the action (see N.Y.Const. art. VI, § 3, subd. b, par. (1); CPLR 5601, subd. (a)). Although there are instances where a nonfinal order can be appealed to this court, those circumstances are not involved here. ^* Since the causes of action for conscious pain and suffering have not been disposed of by the Appellate Division decision, plaintiff's lawsuit against defendants continues and, for purposes of determining appealability to this court, we must determine the finality of the order which dismissed the claim for wrongful death.

Where two or more causes of action are asserted in one complaint, an order of the Appellate Division which dismisses one of them may be considered to have impliedly severed it from the pending undetermined litigation involving the remaining claims. Hence, the order of the Appellate Division may be final under the doctrine of "implied severance" (see Cohen and Karger, Powers of the New York Court of Appeals, § 21, pp. 84-93). However, the rule does not go so far as to hold that every order dismissing a cause of action is final for purposes of our jurisdiction.

While it may be noted that the trend has been away from earlier decisions limiting the availability of the implied severance theory, the court has recognized that the doctrine should not apply in instances characterized as "some exceptional situations involving an extremely close interrelationship between the respective claims" (Sirlin Plumbing Co. v. Maple Hill Homes, 20 N.Y.2d 401, 403, 283 N.Y.S.2d 489, 490, 230 N.E.2d 394, 395; see, e. g., Behren v. Papworth, 30 N.Y.2d 532, 330 N.Y.S.2d 381, 281 N.E.2d 178). Regardless of whether these situations are rare or common, the court has continued to hold the doctrine of implied severance to be inapplicable in cases, for example, where "the finally determined cause of action is not discrete from the transactions giving rise to counterclaims which are not finally determined" (Lizza Ind. v. Long Is. Light. Co., 36 N.Y.2d 754, 368 N.Y.S.2d 830, 329 N.E.2d 664; Walker v. Sears, Roebuck & Co., 36 N.Y.2d 695, 366 N.Y.S.2d 412, 325 N.E.2d 872). Thus, in cases involving an interrelationship or overlap of claims, the separateness of the dismissed claim must be determined.

Applying these principles to the matter at hand, for purposes of finality, we find the order appealed from to involve a discrete claim. This is not a case which comprises "in essence, nothing more than a single cause of action" (compare Behren v. Papworth, 30 N.Y.2d 532, 534, 330 N.Y.S.2d 381, 383, 281 N.E.2d 178, 179, Supra ). To the contrary, the causes of action are materially separate and distinct. A personal injury action is for conscious pain and suffering of the decedent prior to his death. This contrasts with a wrongful death action for pecuniary injuries resulting from decedent's death and certain expenses. The recovery for conscious pain and suffering accrues to the decedent's estate, whereas the damages for wrongful death are for the benefit of the decedent's "distributees" who have suffered "pecuniary injury" (see EPTL 5-4.1, 5-4.3, 5-4.4, 11-3.3). The claims are thus predicated on essentially different theories of loss which accrue to different parties. Of course, there is some overlap and the same wrongful conduct is the basis for both claims, but this is not significant in the context of this case. Most notably, here, the issue is not whether there was malpractice resulting in injury and death, which is the underlying question in both claims, but whether plaintiff may overcome a defense of the Statute of Limitations to his claim for wrongful death. Therefore, at least in these circumstances, the order appealed from should be considered final for purposes of our jurisdiction.

On the merits, plaintiff urges the court to establish a common-law cause of action for wrongful death, notwithstanding that our Legislature has expressly authorized such claims for over a century in statutes culminating in the present EPTL 5-4.1 (see L.1847, ch. 450), and that the right of action to recover for injuries resulting in death is embodied in our Constitution and may not be abrogated (art. I, § 16). As a groundwork for this request, plaintiff relies upon a decision in which the Supreme Court overruled The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 and held that "an action does lie under general maritime law for death caused by violation of maritime duties" (Moragne v. States Mar. Lines, 398 U.S. 375, 409, 90 S.Ct. 1772, 1792, 26 L.Ed.2d 339). In essence, plaintiff implores the court to recognize a common-law cause of action for wrongful death and then to toll this action under CPLR 208 for the benefit of plaintiff and decedent's other children who were infants at the time of the expiration of the two-year Statute of Limitations in EPTL 5-4.1. However, while we note that at least one jurisdiction has established a common-law cause of action even though its legislative body had permitted such claims by statute (see Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222) and despite the suggestion of other courts that "the New York Courts when directed to Moragne and Gaudette would reach the same conclusion" (Neal v. Butler Aviation Int., D.C., 422 F.Supp. 850, 855; see, e. g., Barnette v. Butler Aviation Int., 89 Misc.2d 350, 391 N.Y.S.2d 348), we decline plaintiff's invitation to change the law of this State.

In Moragne v. States Mar. Lines, the court stated: "We conclude that the Death on the High Seas Act was not intended to preclude the availability of a remedy for wrongful death under general maritime law in situations not covered by the Act" (398 U.S. 375, 402, 90 S.Ct. 1772, 1788, 26 L.Ed.2d 339, Supra ). Here, we are faced with an entirely different problem; our statute expressly provides for a recovery for wrongful death in this situation and the crucial issue is whether a common-law right of action should be recognized to allow plaintiff to...