Simcuski v. Saeli

• Decision Date: 04 May 1978
• Parties: , 377 N.E.2d 713 Eleanor SIMCUSKI, Appellant, v. Anthony J. SAELI, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 259

406 N.Y.S.2d 259

44 N.Y.2d 442, 377 N.E.2d 713

Eleanor SIMCUSKI, Appellant, v. Anthony J. SAELI, Respondent.

Court of Appeals of New York.

May 4, 1978.

Irwin Birnbaum and Robert D. Romeo, Syracuse, for appellant.

John Ganotis and George F. Mould, Fayetteville, for respondent.

OPINION OF THE COURT

JONES, Judge.

We hold that this complaint by a patient against her treating physician sets forth a cause of action based on intentional fraud as well as a cause of action in negligence for medical malpractice. We further conclude that, because of the physician's alleged subsequent intentional concealment of the malpractice and misrepresentation as to its cure, the time within which the action in negligence could be brought was not limited to the then applicable three-year statutory period of limitations and that on the present motion to dismiss the complaint it cannot be said that the action was not thereafter commenced within a reasonable time after discovery of the malpractice. Finally we hold that the Statute of Limitations applicable to the claim for damages based on the intentional fraud is the six-year statute. We note that different measures of damages will be applicable to the two causes of action.

On defendant's present motion to dismiss the complaint under CPLR 3211 (subd. (a), par. 5) on the ground that the plaintiff's claims are barred by the Statute of Limitations, we accept the allegations of the complaint and the admissible portions of plaintiff's supporting affidavits (CPLR 3211, subd. (c)). On October 19, 1970 Dr. Saeli performed a surgical excision of a node from plaintiff's neck. Plaintiff alleges that during the operation on her neck the surgeon negligently injured a spinal-accessory nerve in her neck and also injured branches of her cervical plexus. Following the operation plaintiff told her surgeon that she was experiencing numbness in the right side of her face and neck and that it was difficult and painful for her to raise her right arm. It is alleged that the physician was aware of the negligent manner in which he had performed the surgery and aware, too, that as a result of his negligence plaintiff had suffered a potentially permanent injury. It is further alleged that the physician willfully, falsely and fraudulently told plaintiff that her postoperative problems, pain and difficulties were transient and that they would disappear if she would continue a regimen of physiotherapy which he had prescribed and which was then being given by Dr. Lane. Plaintiff continued with the physiotherapy prescribed by Dr. Saeli until October, 1974. In the meantime she had moved to Syracuse, New York, where she sought further medical advice. In January, 1974 she was first apprised by the Syracuse physician of the true nature of her injury and that it probably had been caused at the time of her surgery. This doctor's diagnosis was substantially confirmed in October, 1974 by a professor of medicine, specializing in neurology, at Upstate Medical Center in Syracuse, who also advised that reanastomosis of the sectioned nerve four years after the surgery would not be a physiologically successful procedure. It is further alleged that Dr. Saeli had intentionally withheld information from plaintiff as to the true nature and source of her injury, in consequence of which she was deprived of the opportunity for cure of her condition.

The present action against Dr. Saeli was commenced in April, 1976. ¹ Prior to service of an answer, Dr. Saeli moved to dismiss the complaint under CPLR 3211 (subd. (a), par. 5) on the ground that the cause or causes of action alleged were barred by the Statute of Limitations. Plaintiff cross-moved for leave to amend her complaint specifically to include a cause of action for malpractice. Supreme Court denied defendant's motion to dismiss and granted plaintiff leave to amend her complaint as requested. On appeal, the Appellate Division reversed, granted defendant's motion and dismissed the complaint. Plaintiff thereupon appealed as of right to our court.

In our view the complaint sufficiently sets forth two causes of action although not explicitly or separately denominated one in negligence for medical malpractice on the part of Dr. Saeli in connection with the surgical excision of the node on October 19, 1970, the other for an intentional tort in knowingly and fraudulently misinforming plaintiff as to her physical condition and misrepresenting that physiotherapy would produce a cure. ² Our analysis begins with the consideration of the cause of action in negligence.

The complaint sufficiently sets forth a cause of action for medical malpractice; the critical issue is whether this cause of action was barred by the then applicable three-year Statute of Limitations (CPLR 214, subd. 6). Normally the statute would have precluded institution in April, 1976 of a claim for damages for malpractice alleged to have occurred in October, 1970. This complaint, however, further alleges that defendant intentionally concealed the alleged malpractice from plaintiff and falsely assured her of effective treatment, as a result of which plaintiff did not discover the injury to the nerve until October, 1974. In this circumstance principles of equitable estoppel are applicable to relieve plaintiff from the proscriptions of the statute. As noted by Mr. Justice Earle C. Bastow in Erbe v. Lincoln Rochester Trust Co., 13 A.D.2d 211, 213, 214 N.Y.S.2d 849, 852, mot. for rearg. and mot. for lv. to app. den. 14 A.D.2d 509, 217 N.Y.S.2d 576, app. dsmd. 11 N.Y.2d 754, 226 N.Y.S.2d 692, 181 N.E.2d 629: "Fraudulent representations may play a dual role. They may be the basis for an independent action for fraud. They may also, in equity, be a basis for an equitable estoppel barring the defendants from invoking the statute of limitations as against a cause of action for breach of fiduciary relations."

It is the rule that a defendant may be estopped to plead the Statute of Limitations where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action. (General Stencils v. Chiappa, 18 N.Y.2d 125, 272 N.Y.S.2d 337, 219 N.E.2d 169; Erbe v. Lincoln Rochester Trust Co., 13 A.D.2d 211, 214 N.Y.S.2d 849, mot. for rearg. and mot. for lv. to app. den. 14 A.D.2d 509, 217 N.Y.S.2d 576, app. dsmd. 11 N.Y.2d 754, 226 N.Y.S.2d 692, 181 N.E.2d 629, supra; see Fraud, Misrepresentation, or Deception as Estopping Reliance on Statute of Limitations, Ann., 43 A.L.R.3d 429.) The allegations of her complaint bring this plaintiff within the shelter of this rule. The elements of reliance by plaintiff on the alleged misrepresentations as the cause of her failure sooner to institute the action for malpractice and of justification for such reliance, both necessarily to be established by her, are sufficiently pleaded within the fair intendment of the allegations of this complaint.

From an examination of prior cases in our court, including the records and briefs, it appears that in one case, without written exposition, the court rejected recognition and application of the doctrine of equitable estoppel to extend the period of limitations in medical malpractice cases Ranalli v. Breed, 277 N.Y. 630, 14 N.E.2d 195. (Cf. Rokita v. Bushwick Hosp. (Germaine), 7 N.Y.2d 710, 197 N.Y.S.2d 1026, 165 N.E.2d 210.) Both of those cases were decided prior to our court's decision in General Stencils v. Chiappa (18 N.Y.2d 125, 272 N.Y.S.2d 337, 219 N.E.2d 169, supra ), however, and the unarticulated determination in Ranalli must be deemed to have been overruled by that later decision. The doctrine has been applied in other States in circumstances which are legally indistinguishable from the present. (Bowman v. McPheeters, 77 Cal.App.2d 795, 176 P.2d 745; Stafford v. Shultz, 42 Cal.2d 767, 270 P.2d 1; Guy v. Schuldt, 236 Ind. 101, 138 N.E.2d 891; Adams v. Ison, 249 S.W.2d 791 (Ky.); cf. Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267.) The quality of the relationship between physician and patient, with confidence normally reposed by the patient in the physician and the unquestioning reliance which such relationship may be expected to engender in the patient, make application of the doctrine peculiarly appropriate in such cases.

It is as important to determine the effect of the doctrine of equitable estoppel as it is to determine that it applies. If the conduct relied on (fraud, misrepresentation or other deception) has ceased to be operational within the otherwise applicable period of limitations (or perhaps within a reasonable time prior to the expiration of such period), many courts have denied application of the doctrine on the ground that the period during which the plaintiff was justifiably lulled into inactivity had expired prior to the termination of the statutory period, and that the plaintiff had thereafter had sufficient time to commence his action prior to the expiration of the period of limitations. (E.g., 509 Sixth Ave. Corp. v. New York City Tr. Auth., 24 A.D.2d 975, 265 N.Y.S.2d 429; see Plaintiff's Diligence as Affecting His Right to Have Defendant Estopped From Pleading the Statute of Limitations, Ann., 44 A.L.R.3d 760, §§ 5, 6, pp. 768-774; Fraud, Misrepresentation, or Deception as Estopping Reliance on Statute of Limitations, Ann., 43 A.L.R.3d 429, § 6, pp. 453-454.) That is not the present situation. Plaintiff has alleged that her discovery of the malpractice in this case (the point at which the conduct here relied on ceased to be operational) did not occur until October, 1974 (or possibly in January of that year if inference be drawn from the letter of her Syracuse doctor dated January 9, 1974 submitted in opposition to the motion). Whichever the month of discovery in 1974, the three-year Statute of Limitations had already expired in October, 1973.

Where, as here, the conduct relied on ceases to be operational after the expiration of the period of limitations, two approaches may be...