On 19 October 1970, a doctor performed a surgical excision of a node from plaintiff’s neck. Allegedly, during the operation on plaintiff’s neck, the surgeon negligently injured a spinal-accessory nerve in her neck and also injured branches of her cervical plexus. Following the operation, plaintiff told her surgeon that she was experiencing numbness in the right side of her face and neck and that it was difficult and painful for her to raise her right arm. The physician was allegedly aware of the negligent manner in which he had performed the surgery and, as a result, plaintiff suffered a potentially permanent personal injury; that the physician willfully, falsely and fraudulently told plaintiff that her post-operative problems, pain and difficulties were transient and that they would disappear if she would continue a regimen of physiotherapy which he had prescribed and which was then being given by another doctor. Consequently, plaintiff continued with the physiotherapy prescribed by the subject doctor until October 1974. Meanwhile, she had moved to Syracuse, New York, where she sought further medical advice. In January 1974, she was first apprised by the Syracuse physician of the true nature of her injury and that it probably had been caused at the time of her surgery. This doctor’s diagnosis was substantially confirmed in October 1974 by a professor of medicine, specializing in neurology, at Upstate Medical Center in Syracuse, who also advised that reanastomosis of the sectioned nerve four years after the surgery would not be a physiologically successful procedure. Allegedly, the doctor who performed the surgery on plaintiff had intentionally withheld information as to the true nature and source of her injury, thus, she was deprived of the opportunity for a cure of her condition.
Sometime in April 1976, the present personal injury action against the surgical doctor was commenced. Prior to service of an answer, the doctor moved to dismiss the complaint under CPLR 3211 on the ground that the cause or causes of action alleged were barred by the Statute of Limitations. Plaintiff then cross-moved for leave to amend her complaint to include a cause of action for malpractice.
The Supreme Court in Westchester denied defendant’s motion to dismiss and granted the plaintiff leave to amend her complaint, as requested. On appeal, the Appellate Division reversed, granted defendant’s motion and dismissed the complaint. Plaintiff thereupon appealed the said decision.