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On 19 October 1970, a doctor performed a surgical excision of a node


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.

The Ruling:

Here, the court finds that the complaint by the patient against her treating physician sets forth a cause of action based on intentional fraud as well as a cause of action in negligence for medical malpractice. Further, by reason of the physician’s alleged subsequent intentional concealment of the malpractice and misrepresentation as to its cure, the time within which the action in negligence could be brought was not limited to the then applicable three-year statutory period of limitations and that, on the present motion to dismiss the complaint, it cannot be said that the action was not commenced within a reasonable time after discovery of the malpractice. Moreover, the Statute of Limitations applicable to the claim for damages based on the intentional fraud is the six-year statute. Different measures of damages are applicable to the two causes of action.

Clearly, the complaint sufficiently sets forth two causes of action, although not explicitly or separately denominated, one in negligence for medical malpractice on the part of the surgical doctor in connection with the surgical excision of the node and the other for an intentional tort in knowingly and fraudulently misinforming plaintiff as to her physical condition and misrepresenting that physiotherapy would produce a cure.

The complaint sufficiently sets forth a cause of action for medical malpractice; the critical issue is whether such cause of action was barred by the then applicable three-year Statute of Limitations. Normally the statute would have precluded institution in April 1976 of a claim for damages for malpractice alleged to have occurred in October 1970. Nonetheless, this complaint further alleges that defendant intentionally concealed the alleged malpractice from plaintiff and falsely assured her of effective treatment, as a result of which plaintiff did not discover the injury to the nerve until October 1974. In this case, principles of equitable estoppel are applicable to relieve plaintiff from the proscriptions of the statute. It has been ruled that fraudulent representations may play a dual role. They may be the basis for an independent action for fraud and they may also, in equity, be a basis for an equitable estoppel barring the defendants from invoking the statute of limitations as against a cause of action for breach of fiduciary relations.

In the instant case, the elements of reliance by plaintiff on the alleged misrepresentations as the cause of her failure sooner to institute the action for malpractice and of justification for such reliance, both necessarily to be established by her, are sufficiently pleaded within the fair intendment of the allegations of this complaint. In passing, the court observes that, if it is established that plaintiff is not precluded from prosecuting the cause of action in negligence and she proves that cause on the merits, the measure of damages which she will be entitled to recover will be that normally associated with medical malpractice actions in situations such as the present.

The issue now is the claim of fraud as an intentional tort. The essential elements, here alleged or within the reasonable intendment of the complaint, are knowledge on the part of the physician of the fact of his malpractice and of his patient’s injury in consequence thereof, coupled with a subsequent intentional, material misrepresentation by him to his patient known by him to be false at the time it was made, and on which the patient relied to his damage in this case, defendant’s intentionally concealing from his patient the fact of the malpractice and thereafter fraudulently misstating that the therapy prescribed would effect a cure. This is more than another aspect of the malpractice or even another act of alleged negligent malpractice on the part of the treating physician; the complaint alleges an intentional fraud that the surgical doctor, knowing it to be untrue yet expecting his patient to rely on his advice, advised her that physiotherapy would produce a cure, in consequence of which fraudulent misrepresentation the patient was deprived of the opportunity for cure of the condition initially caused by the doctor’s alleged malpractice. If these allegations are proved they will establish an intentional tort, separate from and subsequent to the malpractice claim. Recovery of damages in such case is governed by the six-year Statute of Limitations under CPLR 213. The application of the three-year Statute of Limitations is not mandated by the circumstance that the fraud alleged arises as a sequel to an alleged malpractice.

Thus, in the case at bar, if it can be shown that at the time of the surgical doctor’s alleged fraudulent misrepresentations it was already too late to undertake a reanastomosis of the severed nerve, this plaintiff will have sustained little or no damages in consequence of the alleged fraud. If only a partial cure were then possible, damages would be assessable on that basis. Recovery would be greatest if plaintiff were diverted from what could otherwise have been a complete cure.

Accordingly, the order of the Appellate Division is reversed, with costs to abide the event, and the order of Supreme Court denying defendant’s motion to dismiss is reinstated.

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