Renda v. Frazer

• Decision Date: 10 July 1980
• Parties: Vincent RENDA and Yolanda Renda, Respondents, v. John P. FRAZER and University of Rochester, Strong Memorial Hospital, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 944

429 N.Y.S.2d 944

75 A.D.2d 490

Vincent RENDA and Yolanda Renda, Respondents, v. John P. FRAZER and University of Rochester, Strong Memorial

Hospital, Appellants.

Supreme Court, Appellate Division, Fourth Department.

July 10, 1980.

Nixon, Hargrave, Devans & Doyle, Rochester, for appellants (William Eggers, Rochester, of counsel).

Sullivan, Gough, Skipworth, Summers & Smith, Rochester, for respondents (William Gough, Rochester, of counsel).

Before SIMONS, J. P., and HANCOCK, SCHNEPP, DOERR and MOULE, JJ.

SCHNEPP, Justice.

We are called upon to determine whether a physician may be equitably estopped from asserting the Statute of Limitations as a bar to a medical malpractice action absent an affirmative claim that the patient was induced by fraud, misrepresentation or deception to refrain from filing a timely action.

On March 14, 1973 Dr. John P. Frazer performed ear surgery on plaintiff Yolanda Renda at Strong Memorial Hospital during which he severed her seventh facial nerve. After the operation, Ms. Renda's face was partially paralyzed; she was unable to move the muscles on the right side of her face, including the right side of her mouth and nose and her right eyelid and eyebrow. This condition improved somewhat over time, but has resulted in a permanent disfigurement.

Plaintiffs, Yolanda and Vincent Renda, brought this action in July 1978 alleging that defendants, Dr. Frazer and the Strong Memorial Hospital, failed to follow accepted medical standards while performing a mastoidectomy and tympanoplasty. Plaintiffs' complaint also contains a cause of action alleging lack of an informed consent. Following the completion of the examinations before trial of Dr. Frazer and Ms. Renda, defendants moved for summary judgment, claiming that the action was time-barred by the Statute of Limitations ¹. They appeal from an order denying their motion.

Special Term correctly ruled that the doctrine of "continuous treatment" tolled the Statute of Limitations as to the defendant Strong Memorial Hospital but, because of Dr. Frazer's intermittent treatment of Ms. Renda, the doctrine did not toll the Statute of Limitations as to him (Renda v. Frazer, 100 Misc.2d 511, 515, 419 N.Y.S.2d 857; see, Charalambakis v. City of New York, 46 N.Y.2d 785, 413 N.Y.S.2d 912, 386 N.E.2d 823; Davis v. City of New York, 38 N.Y.2d 257, 379 N.Y.S.2d 721, 342 N.E.2d 516; Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777; see generally, 1 N.Y.P.J.I.2d, § 2:150, cumulative supplement, p. 115). Special Term further held, however, that the doctrine of equitable estoppel precluded Dr. Frazer from raising the Statute of Limitations as a defense (100 Misc.2d 511, 519, 419 N.Y.S.2d 857). Although we concur with the result reached by Special Term, we disagree with its application of the doctrine of equitable estoppel.

Plaintiff Yolanda Renda states in her affidavit submitted on this motion that Dr. Frazer told her after the operation that he had severed a facial nerve, following which he implanted a nerve graft. She claims that Dr. Frazer told her that the nerve graft "would start to grow after six months and then take anywhere from two years to five years to grow back together and take", and that when she asked whether her face would be normal, he replied that "everything would be alright". She further claims that during a medical examination on October 23, 1973 she asked Dr. Frazer how long she would continue to suffer her facial condition and he responded "that it would take a long time for the graft to heal and that she should be patient". During the years between 1973 and 1977, Ms. Renda inquired on several occasions of Dr Ralph F. Jacox, an employee of Strong Memorial Hospital who treated her for an unrelated condition, in regard to the progress of the nerve graft. Dr. Jacox and Dr. Richard Satran, a neurologist to whom Dr. Jacox referred Ms. Renda for her facial nerve condition, informed her, in essence, that healing would take time, that she should be patient and finally that no further treatments were recommended. She again visited Dr. Frazer on August 30, 1977 for the first time since October 1973, and he then told her that her condition was permanent. Ms. Renda alleges that "she waited" before bringing a malpractice action against Dr. Frazer "because of the statements made to her by Dr. Frazer and other physicians on the staff of Strong Memorial Hospital that the nerve would grow back and she would have normal use of her face".

Generally, a defendant physician may be estopped from asserting "the Statute of Limitations where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action" (Simcuski v. Saeli, 44 N.Y.2d 442, 448-449, 406 N.Y.S.2d 259, 377 N.E.2d 713). However, application of the doctrine of equitable estoppel will be rejected if plaintiff neither pleads, alleges nor presents evidentiary facts supporting a claim of fraud or fraudulent concealment (Florio v. Cook, 48 N.Y.2d 792, 423 N.Y.S2d 917, 399 N.E.2d 947; Immediate v. St. John's Queens Hosp., 48 N.Y.2d 671, 421 N.Y.S.2d 875, 397 N.E.2d 385; see also, Simcuski v. Saeli, supra; see generally, Farrell, Civil Practice, 1978 Survey of N.Y. Law, 30 Syracuse L.Rev. 385, 406-409 (1979)).

Special Term, after concluding that "(t)he doctrine of equitable estoppel applies if the misrepresentations or conduct of a defendant mislead the plaintiff, even innocently", held that "where (a) doctor's opinion given in the course of treatment, is incorrect and the patient relies upon it to his detriment, as here, then such mistaken opinion, albeit innocent, properly falls in the category of misrepresentation which the law requires for the application of equitable estoppel. At the very least, . . . it is a jury question precluding the granting of summary judgment . . ." (100 Misc.2d 511, 519, 419 N.Y.S.2d 857, 863). This is an incorrect statement of the law. In medical malpractice cases, a doctor's prognosis, made in good faith and innocent of any intent to mislead or defraud will not supply the basis of a claim of equitable estoppel. It may well be that in the context of settlement negotiations an intent to defraud or mislead is not a prerequisite for a claim of equitable estoppel (see, e. g. Dupuis v. Van Natten, 61 A.D.2d 293, 295, 402 N.Y.S.2d 242; Robinson v. City of New York, 24 A.D.2d 260, 263, 265 N.Y.S.2d 566), but these cases do not involve professional medical opinions. The Court of Appeals specifically held in Simcuski v. Saeli, 44 N.Y.2d 442, 454, 406 N.Y.S.2d 259, 266, 377 N.E.2d 713, 719, supra: "With respect to the application of the doctrine of equitable estoppel as a defense of Statute of Limitations pleaded in a malpractice action, . . . we are concerned with an intentional, not merely negligent, wrong. The purposeful concealment and misrepresentation of the fact and consequences of the malpractice". To hold that an innocent mistake in medical opinion may constitute misrepresentation may open the "proverbial floodgates" to claims of equitable estoppel in medical malpractice cases.

In their complaint and affidavit submitted in response to defendant's summary judgment motion, plaintiffs do not allege that Dr. Frazer fraudulently misled them from timely instituting an action for malpractice (compare, Simcuski v. Saeli, supra). However, evidentiary facts supporting a claim of "the purposeful concealment and misrepresentation of the . . . consequences of the malpractice" (Simcuski v. Saeli, supra, p. 454, 406 N.Y.S.2d p. 266, 377 N.E.2d p. 719) appear in the record (Immediate v. St. John's Queens Hosp., supra, p. 673, 421 N.Y.S.2d 875, 397 N.E.2d 385). At the examination before trial, Dr. Frazer gave the following answers to the plaintiffs' attorney's questions:

"Q. Didn't (Ms. Renda) ask you how long it would be before (the nerve graft) reached maximum improvement or before it got better, or something of that sort?

A. I have no note of it.

Q. Would you tell a patient something about how long it is going to take for you to get well?

A. I told her originally it would take six months before it would even begin to show.

Q. Did you tell her it would be two to five years before it would get well?

A. No, maybe not, because you don't know.

...