KID BROUGHT CASE TOO LATE
After he received some vaccines back in 2006, D.B’s condition “deteriorated,” and the then 13-year-old sought treatment from several doctors, including “I,” “P,” and “S.” When the Bronx County Supreme Court dismissed the negligence case he later filed against them, the kid appealed to the Appellate Division, First Department.Because none of these doctors administered the vaccines, the AD1 didn’t think the protections afforded by the National Vaccine Injury Compensation Program, Part 2 of the National Childhood Vaccine Injury Act of 1986, (VICP or NCVIA) (42 USC § 300aa-10 et seq.), applied. [That statute limits the filing of a case against a “vaccine administrator or manufacturer.” And since none of these doctors administered the vaccine, those limitations were deemed to be inapplicable here.]
However, there was a bigger problem with the kid’s lawsuit. Since the complaint alleged that Dr. I treated the youngster from 4/28/06 to 5/13/06, that Dr. P’s treatment ran from 4/28/06 to 9/26/06, while Dr. S’s involvement ran from 9/1/06 to 12/31/12, by state law, once he turned 18, the youngster had only a delineated time-frame within which to file a personal-injury case against those physicians.
The AD1 noted that CPLR 208(a) required the case to be brought within two years and six months from October 9, 2010; which is when D.B. turned 18. Since the case wasn’t filed until January 5, 2016, the AD1 affirmed the dismissal, since it was of the view the claims were “time-barred,” and could not be maintained against those physicians. [The limitations period or “deadline” was reportedly 4/9/13, for Doctors I and P, and 6/30/15, for Dr. S.]
Looks like the AD1 didn’t treat that kid so well, either.
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DECISION