12 N.Y.2d 151 | NY | 1962
Lead Opinion
The infant plaintiff and his father took judgment against the City of New York on a jury’s verdict which imported a finding that the infant’s injuries were caused
The child was admitted to the hospital on October 10,1956 and discharged therefrom on February 14,1958. The notice of claim was filed with the city 63 days later, that is, on April 18, 1958. The city argues that there can be no recovery for injuries inflicted more than 90 days prior to that notice and that the several negligent acts here complained of all took place on dates (October 11,1956; April 22, May 5 and November 25,1957) much earlier. We must, therefore, decide whether the 90-day period begins to run at the last date of malpractice or at the end of continuous treatment or hospital-patient or physician-patient relationship. The city’s brief acknowledges that “ New York precedent does not foreclose adoption of either view ” but urges that “ the sounder position is to begin the limitation period with the last act of malpractice rather than with the cessation of treatment.” We do not agree. We hold that at least when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint, the “ accrual ” comes only at the end of the treatment.
Preliminarily, we note that the same rule must be applied whether we are passing on a true Statute of Limitations problem (Civ. Prac. Act, § 49, subd. 6; § 50, subd. 2) or a section 50-e dispute. The question is the same: when did the claim or cause of action “ accrue ”? This court has never had to decide whether in the case of continuous treatment “ accrual ” is postfoned until treatment ends, but in Hammer v. Rosen (7 N Y 2d 376, 379 [1960]) we forecast an affirmative answer. Hammer v. Rosen is not an actual application of the ‘ ‘ continuous treat
In approving the “ end of continuous treatment ” formula for computing time limitations in these matters, we are making no rash or sudden break with precedent. As pointed out by a recent writer (Lillich, Syracuse L. Rev., Fall ed., 1962, p. 42; see, also, the same author’s earlier article in 47 Corn. L. Q. 339-343), New York courts have been making such rulings since 1923 (Sly v. Van Lengen, 120 Misc. 420, supra). Hammer v. Rosen (7 N Y 2d 376, supra) indicated concurrence therewith and such has been the uniform trend in our State except for the Second Department’s two decisions in Borgia (the present case) and Gross v. Wise (16 A D 2d 682). The out-of-State cases listed above and cited by us in Hammer v. Rosen (supra) are of respectable age also, dating back as they do to the years between 1930 and 1941.
Little argument is needed to prove the proposition that the “ continuous treatment ” theory is the fairer one. It would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician or hospital superintendent or by filing a notice of claim in the case of a city hospital. The case now under review will illustrate. This child by reason of the hospital personnel’s negligence suffered permanent brain damage at the hospital on the night he was admitted and on three later occasions was a victim of neglect amounting to malpractice. Acceptance by us of the city’s argument that the 90 days ran from the last malpractice would mean that, if the child had remained in the hospital a few days longer than he did, the 90-day period would have expired while he was still a patient receiving care and treatment related to the conditions produced by the earlier wrongful acts and omissions of defendant’s employees.
Since we are holding that the notice was given in time, we need not pass on plaintiffs’ assertions that the city waived or is estopped from taking advantage of the alleged delay in filing. As to other procedural positions taken by plaintiffs, we hold: (1) that the Appellate Division’s order denying plaintiffs’ motion to consolidate the cross appeal with defendant’s appeal is not presently reviewable under section 580 of the Civil Practice Act; (2) the Special Term order granting defendant’s motion to amend its answer is not before us since it was never appealed to the Appellate Division (as it turns out that amendment was not prejudicial to plaintiffs); and (3) the adult plaintiff’s attempted appeal from the trial court’s reduction of his separate verdict is not reviewable since he stipulated to such reduction and, accordingly, is not a 11 party aggrieved ’ ’ (see Enslein v. Hudson & Manhattan R. R. Co., 5 N Y 2d 778; Civ. Prac. Act, § 584-a).
Plaintiffs’ appeals discussed in the paragraph next above should be dismissed. The judgment should be reversed, with costs in this court and in the Appellate Division, and the judgment of the trial court reinstated.
Dissenting Opinion
On October 10, 1956 infant plaintiff, then 15 months old, was a normal, healthy, active child, able to walk and talk. At approximately 6 o’clock that evening he was scalded by hot coffee, and, after receiving first aid from his family physician, was taken to Kings County Hospital for treatment of the severe second and third degree burns on his neck, chest and right arm. After he was given medication and had his wounds dressed, the infant was removed from the emergency room to a ward room where he was put to bed. His mother was informed that her son “ was fine ” and would “ be home by the weekend
The infant remained in the hospital for physiotherapy and efforts at rehabilitation until February 14, 1958. The hospital record also contains a notation that the infant “ has been held in hospital for this physiotherapy and general nursing care because it was felt mother would be unable to properly take care of child during her pregnancy ’ ’. While in the hospital, the infant was found to be in convulsions or cyanotic (a bluish discoloration of the skin secondary to anoxia) on April 22, May 5 and November 25, 1957. This latter condition, if not treated properly, results in damage to the brain tissues, but here the child’s brain had already been permanently damaged on October 10-11, 1956, as conceded by defendant, and the subsequent conceded acts of malpractice had no added effect.
As a result, the infant is unable to stand, sit unsupported, speak, or feed himself; in addition, he has been rendered a mental defective, has weakness of the four extremities and serious visual defects, and is subject to frequent seizures involving loss of consciousness. With constant supervision and nursing care the infant could, over a period of time, learn a few simple techniques, i.e., to feed himself with a spoon, make known his toilet needs and respond to language instruction on a very simple level.
The dispositive question on this appeal is whether the notice of claim required to be filed pursuant to section 50-e of the General Municipal Law, as a “ condition precedent to the commencement of an action” against the city, was timely filed. That notice of claim was filed within 90 days of the date of the infant’s discharge from the hospital, but not within 90 days of any act of malpractice. We are thus called upon to decide whether the period within which to file notice commences upon the infant’s discharge from the hospital or upon the last act of malpractice.
Although quite doubtful of the validity of plaintiffs’ contentions during the course of the trial, the Trial Judge subsequently concluded that the period within which to file notice of claim commenced on the date the infant was discharged (which he equated with the day a doctor last treats a patient); accordingly, he denied defendant’s motions for a directed verdict and to set aside the verdict. In arriving at his conclusion, the Trial Judge treated the problem as analogous to a situation presenting the question when the Statute of Limitations “ starts to run ” in malpractice cases. His principal reliance upon our decision in Hammer v. Rosen (7 N Y 2d 376) is misplaced, for there malpractice definitely occurred within the limitation period.
The majority of the Appellate Division concluded that the “ injury was sustained, at the latest, on the date of the last act of malpractice, and not on the date when treatment ceased”. Since notice had not been filed within 90 days of that date, the judgment appealed from was reversed on the law and the complaint dismissed. The dissenting Justices agreed with the majority that the notice was served late, but were of the opinion that 11 the city not only waived the late notice, but is estopped from making such a claim ”.
We have repeatedly held that the Statute of Limitations runs from the date that the negligent or wrongful act is committed (Hammer v. Rosen, supra; Golia v. Health Ins. Plan, 7 N Y 2d 931; Ranalli v. Breed, 277 N. Y. 630; Conklin v. Draper, 254 N. Y. 620; see, also, Rokita v. Germaine, 8 A D 2d 620, motion for leave to appeal den. 7 N Y 2d 710; Gross v. Wise, 16 A D 2d 682; Lillich, The Malpractice Statute of Limitations in New York and Other Jurisdictions, 47 Corn. L. Q. 339, 340). Applying this rule to the instant case, the notice must be held to have been served late, since it was served more than 90 days after the last act of malpractice.
The instant case is not one in which the malpractice consisted of failing to remove a foreign object from the patient’s body, and thus constituted a continuing wrong so long as the patient remained under the defendant’s care (Ranalli v. Breed, supra; Sly v. Van Lengen, 120 Misc. 420 ; Huysman v. Kirsch, 6 Cal. 2d 302; Gillette v. Tucker, 67 Ohio St. 106); nor is it one in which the defendant failed correctly to diagnose and treat plaintiff’s condition, and throughout their relationship persisted in Ms error (Golia v. Health Ins. Plan, 7 N Y 2d 931, supra; Williams v. Elias, 140 Neb. 656); or where the defendant improperly treated plaintiff throughout a continuous course of treatment for the initial ailment (Hammer v. Rosen, supra; Nervick v. Fine, 190 Misc. 464; De Haan v. Winter, 258 Mich. 293; Schanil v. Branton, 181 Minn. 381; Peteler v. Robinson, 81 Utah 535).
Here the infant was brought into the hospital for treatment of burns, which quickly healed. In the course of that treatment, defendant was negligent in allowing the child to go into shock and sustain irreversible brain damage on the very night of his admission, and that gave rise to an immediate cause of action. The infant’s subsequent stay for the purpose of physiotherapy and rehabilitation can in no sense be deemed continuous treatment for burns, or a continuation of the original wrong or malpractice. The permanent damage had already been done — the doctors were merely trying, in accordance with approved practice, to instruct the infant in a few simple techniques to alleviate in part the result of the serious damage already inflicted.
As to the subsequent malpractice on the three occasions when the infant was found to be in convulsions or cyanotic, nothing was shown to indicate that they were related to the original injury— the burn — or the result of the therapy which the infant was
As to the claim of estoppel, the city did nothing here to mislead plaintiffs other than to retain the notice of claim. That notice based plaintiffs’ action on “continued and consistent negligent and careless treatment * * * from October 10th, 1956 to and including the 14th day of February, 1958 ”, which, if true, would have rendered the service of the notice of claim timely. Such claim, however, was never established at the trial.
We have considered plaintiffs’ contentions with respect to the intermediate orders they seek to have reviewed, and are all agreed that these appeals should be dismissed.
We are not unmindful of the unfortunate consequences of an affirmance in this case, but our prior decisions in this area, as well as our literal interpretation of section 50-e of the General Municipal Law, beginning with Matter of Martin v. School Bd. (301 N. Y. 233), leave us no alternative. By reinstating the verdict the majority here, on this record, are approving the award of substantial damages for an act of negligence committed more than one and one-half years before plaintiffs filed their notice of claim, contrary to our holdings in analogous property damage cases (Meruk v. City of New York, 223 N. Y. 271, 275-276; Thomann v. City of Rochester, 256 N. Y. 165, 170).
The judgment should be affirmed, and the appeals from the intermediate orders dismissed, without costs.
Judges Dye, Fuld, Burke and Foster concur with Chief Judge Desmond ; Judge Froessel dissents in an opinion.in which Judge Yan Voorhis concurs.
Upon appeal from the orders: Appeal dismissed.
Upon appeal from the judgment: Judgment of the Appellate Division reversed and that of the Trial Term reinstated, with costs in this court and in the Appellate Division.