STARTED MEDICAL MALPRACTICE CASE TOO LATE
After J.C. filed a “medical malpractice” case alleging that her doctor, J.E.S., failed to diagnose her breast cancer, the latter sought to dismiss the litigation, claiming he was never served with the pleadings and that the dispute was now barred by the governing statute of limitations.
When the Suffolk County Supreme Court denied that dismissal request (and allowed the plaintiff an extension of time to serve the summons and complaint), an appeal ensued.
On its review of the record, the Appellate Division, Second Department, noted that the J.C. had only two years and six months to file suit based upon the commission of the “act, omission or failure complained of,” and, when dealing with the diagnosis of cancer or a malignant tumor, that time was extended or the claim needed to be brought within 30 months of the plaintiff knowing or when she “reasonably should have known of such alleged negligent act or omission.”
Since J.C. failed to submit “competent evidence” that this later timeframe, or “discovery rule,” applied, the AD2 thought that J.C. hadn't raised an “issue of fact” in response to her doctor’s motion, and that the case against him should have been dismissed. As a result, the underlying determination was reversed.
Was that a doctored result?
# # #
DECISION