Malpractice is found in two different cases

Posted On: March 10, 2013 by Stephen Bilkis

The Long Island plaintiff is appealing an order that was made in the Supreme Court of Orange County that granted the defendants’ motion for summary judgment to dismiss the complaint.

Case Background

The plaintiff alleges that the defendant committed dental malpractice by cutting out tooth number 21 from her mouth and performing negligent bridge work. She further alleges that when she complained about pain, the defendant realized that he had committed malpractice and rather than disclose it he tried to conceal it by stating that the tooth just needed to be bonded and he performed the bonding. This occurred in November of 2003.

In January of 2004, the first defendant referred the plaintiff to another dentist who is the second defendant in this case. The plaintiff alleges that the second defendant recognized that the first defendant had committed malpractice, but did not disclose it and told her to go back to the first defendant and talk to him.

The plaintiff started this action five years later in 2009 against both of the defendants. She alleged fraud against each of the defendants and the issue was joined. The defendants moved for summary judgment to dismiss the complaint as being time barred and that the alleged fraud did not result in any damages. The Manhattan defendants further argued that the alleged fraud was the same as the alleged malpractice case.

In opposition to the motion for summary judgment the plaintiff offered her affidavit that states that as a result of the concealment she did not learn about the damage to her tooth until she went to another dentist in February of 2008.

The Supreme Court granted the motion for summary judgment and dismissed the complaint against the defendants. It is this judgment that is being appealed.

Court Discussion and Decision

When a doctor tries to conceal their own malpractice by making a material and knowing misrepresentation to the patient, the patient may seek separate causes of action to recover damages for both malpractice and fraud as long as the damages that were caused by the fraud are distinct from the damages sustained as a result of malpractice.

In this case, the plaintiff did not allege that she suffered from an injury as a result of the fraud that was separate from the injury that she received as a result of the medical malpractice. For this reason, the Supreme Court was correct in dismissing the cause of action alleging fraud against the first defendant.

All of the allegations against the second defendant are found to be without merit.

However, in regard to the malpractice allegation against the first defendant, the plaintiff has raised triable issues of fact in regard to the fact that she was unable to note the damage to her tooth until she saw another dentist at a later point in time. This would lift the statute of limitations on the case and therefore the motion for summary judgment should not have been granted.

The original order made by the Supreme Court is modified to delete the provision that granted summary judgment in regard to the dental malpractice claim against the first defendant.
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