New York Medical Malpractice Lawyer Blog
The Long Island plaintiff in this case started this action as the administratrix of the estate of her deceased mother. She is seeking to recover money damages for the personal injuries her mother sustained while under the custody of the defendant hospital. The plaintiff has now moved for leave to submit a belated notice of medical malpractice. The defendant is cross moving for the action to be dismissed on the ground that it is time barred by the statute of limitations for medical malpractice.
Case Facts
The mother of the plaintiff was admitted to the defendant Queens hospital with end stage liver disease and end stage renal disease on dialysis. On the 27th of August, 2001, the decedent fell on the floor of the transplant unit. She fell again on the third of September, 2001 and sustained a blunt impact to her head. Two days later a CT scan was performed. The patient fell again on the 22nd of September and allegedly as a result of all of these falls she sustained severe head injuries. Ultimately, the mother lost consciousness and had to be placed on a ventilator. She then died on the 23rd of September, 2001.
Based on these facts the plaintiff started this personal injury action on behalf of her deceased mother by filing a summons and complaint on the 23rd of March, 2004. The plaintiff alleges numerous acts or omissions by the hospital and its staff and labels them as negligent. The case before this court is a motion by the plaintiff for leave to submit a late notice of medical malpractice. The defendant is cross motioning for dismissal of the complaint on the ground that it is time barred by statute of limitations.
Case Discussion and Decision
The court will first need to examine the cross motion made by the defendant’s that seeks summary judgment to dismiss the action as being time barred. The main issue in regard to this cross motion is whether the plaintiff’s claims are grounded in medical malpractice or ordinary negligence. Medical malpractice claims have a statute of limitations of 2 and one half years. A negligence claim has a statute of limitations of three years. The action in this case was commenced after the two and a half year time frame, but before three years.
The court must consider the differences between medical malpractice and negligence. The line between the two claims is very thin. The main test to determine whether or not it is considered medical malpractice or negligence comes down to the acts that are performed and whether or not medical treatment was provided.
In this particular case the court finds that the plaintiff has raised several issues of ordinary negligence and for this reason the argument by the defendant hospital that the whole action is time barred is rejected by the court.
The motion of the defendant is partially granted to the extent that all aspects of the complaint that are for medical malpractice are dismissed. The claims for negligence are not dismissed.
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