Ann Pfau
Ann Pfau (NYLJ/Rick Kopstein)

The first week of February 2014 saw two interesting statute of limitations decisions handed down by the Appellate Division, First Department, both involving medical malpractice actions, one directly and one indirectly. In Perez v. Fitzgerald, 2014 NY Slip Op. 00744 (1st Dept. Feb. 6, 2014), the court held that the statute of limitations period for chiropractic malpractice was three years, not the two and one-half years applicable to medical malpractice.

In Cabrera v. Collazo, 2014 NY Slip Op. 00611 (App. Div. 1st Dept. Feb. 4, 2014), the court put the bar on notice that, whatever the medical malpractice statute of limitations may be, an attorney may be liable for legal malpractice if attorney neglect causes the client to miss the statute of limitations­—even if the attorney’s death occurs before the statute runs.

Chiropractic Malpractice

In Perez, the First Department considered whether plaintiffs’ claims against a chiropractor were time-barred. The answer depended on which of two CPLR provisions governed: Section 214-a providing that “[a]n action for medical, dental or podiatric malpractice must be commenced within two years and six months,” or Section 214(6) providing that “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice” must be commenced within three years. The Perez litigation was brought less than three years but more than two years and six months after the alleged malpractice occurred.

Following a May 2005 automobile accident, plaintiff Nancy Perez saw the defendant chiropractor, Jane Fitzgerald, complaining of neck pain radiating down to her arms. Dr. Fitzgerald ordered an MRI, and on May 25, 2005, received the radiologist’s report showing a number of herniated or bulging discs in the patient’s neck, but no tumor. Dr. Fitzgerald treated Perez until April 2007, when Perez saw a new chiropractor about the same issues. The new chiropractor recommended she see an orthopedist. Upon reviewing a second MRI taken in 2008, an orthopedic surgeon advised Perez that she had a tumor in her spine and should see a neurosurgeon immediately. Surgery to remove the tumor followed.

In June 2009, Perez brought an action against Fitzgerald for chiropractic malpractice. During and at the end of trial, Fitzgerald moved to dismiss the complaint as time-barred under the two and one-half year limitations period for medical malpractice in Section 214-a. After the jury found that Fitzgerald had departed from accepted chiropractic practices by failing to refer plaintiff for a second MRI, the trial court granted the motion to dismiss.

On appeal, Justice John Sweeny, writing for a unanimous court, began with a review of the legislative history and case law relating to CPLR 214(6) and 214-a. Section 214-a was enacted in 1975 to respond, in part, to concerns about the high cost and potential unavailability of medical malpractice insurance in New York; it reduced the limitations period for medical malpractice actions from three years to two years and six months, without defining “medical malpractice.” The Appellate Division began its case law analysis with the 1985 Court of Appeals decision in Bleiler v. Bodnar, 65 N.Y.2d 65 (1985), which established the well-settled rule that the 214-a shortened statute of limitations applied to a malpractice case against a health care professional if that professional was engaged in conduct “that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician.” Perez at 3, quoting 65 N.Y.2d at 71.

The Legislature amended 214-a in 1985 and 1986 to add dental malpractice and podiatric malpractice, respectively, to 214-a. The Court of Appeals inKarasek v. LaJoie, 92 N.Y.2d 171 (1998), considered those amendments when deciding which statute of limitations applied to alleged malpractice by a licensed psychologist. The Court of Appeals rejected the defense argument that “medical malpractice” in 214-a should be defined by the expansive “practice of medicine” definition in Education Law Section 6521.

Concluding that adopting the section 6521 definition would “lead to widely overinclusive results,” the court found the legislative history supported a narrow reading because 214-a was amended to provide the “named professionals” with a means of combating increases in malpractice rates. Since licensed psychologists were not named in 214-a, Karasek held that they did not provide medical services within the meaning of Bleiler and were not subject to the shorter limitation period. Karasek explained that its conclusion turned largely on the nature of the mental health services provided in that case and should not be read to impair the Bleiler holding.

The First Department in Perez also looked to Appellate Division decisions involving chiropractic practice. Prior to Bleiler, the Second Department on two occasions had concluded, albeit in different contexts, that chiropractic malpractice was not within the ambit of medical malpractice. The Second Department held, in Vidra v. Shoman, 59 A.D.2d 714 (2d Dept. 1977), that chiropractors do not practice medicine, and in Faden v. Robbins, 88 A.D.2d 631 (2d Dept. 1982), that a chiropractic malpractice action was not a medical malpractice action for purposes of convening a medical malpractice panel. After Bleiler was decided, the Third Department, in Foote v. Picinich, 118 A.D.2d 156 (3d Dept. 1986), referencing the statement in Bleiler that health care providers other than physicians may be liable for medical malpractice, determined that whether the chiropractic services in that case constituted medical treatment was a question of fact for the jury.

The Perez court also examined several decisions applying 214-a in actions against hospitals and medical corporations alleging medical malpractice by physical therapists, technicians, nurses and others. Perez at 4-5. In those cases, the services were performed at the direction of a physician or following a hospital protocol that was part of patient care, and the alleged injury occurred during the course of medical treatment or bore a substantial relationship to such treatment by virtue of a referral or prescription from a physician.

The First Department noted the common thread in decisions applying CPLR 214-a was that defendants’ services were rendered at the direction or request of a physician who was providing medical treatment to the patient, which satisfied the Bleiler standard for inclusion under 214-a. In Perez, the record established that Fitzgerald provided chiropractic rather than medical treatment, that no licensed physician had referred Perez to Fitzgerald, and the chiropractic treatment was separate and apart from any medical treatment Perez was receiving from a physician. Indeed, Perez testified she had not even mentioned her neck, back and hand complaints to any of the physicians she was seeing while she was treated by Fitzgerald.

The First Department held that the three-year statute of limitations of CPLR 214(6) applied rather than the two-and-one-half year period in 214-a, that the malpractice case was timely commenced, and that the verdict should be reinstated.

Death of Attorney

In the second First Department opinion issued in February, Cabrera v. Collazo, the issue was not which statute of limitations applied, but whether the attorney’s death before the running of the wrongful death limitations period was a defense to a legal malpractice claim.1 The first sentence of the court’s opinion, written by Justice Peter Tom, pointedly signals the appeal’s outcome: “The remarkable defense proffered in this professional malpractice action is that an attorney who neglects a matter so that the statute of limitations runs against his client cannot be held legally accountable if the attorney happens to expire before the applicable limitations period.” Cabrera at 2.

Plaintiff Milagros Cabrera, administrator of the estate of Raquel Gutierrez, brought a legal malpractice action alleging defendants’ failure to bring a timely wrongful death case based on alleged medical malpractice that resulted in the death of Gutierrez on Nov. 4, 2008. Defendants were the executor of the estate of Cary M. Tanzman, his law office (collectively, the Tanzman defendants), and attorney Salvador Collazo. In their motion to dismiss pursuant to CPLR 3211(a)(1) and (7), the Tanzman defendants contended that the attorney-client relationship was terminated by Tanzman’s death on Oct. 24, 2010, and therefore neither his estate nor his law firm could be liable for any damages for the running of the statute of limitations on Nov. 4, 2010. The Appellate Division unanimously affirmed the Supreme Court order denying defendants’ motion.

Although a professional malpractice cause of action accrues when all of the facts necessary to the cause of action have occurred and an injured party can obtain relief in court, the First Department explained that it does not necessarily follow that an attorney is absolved of responsibility for the consequences of neglect simply because the neglect occurred prior to the accrual of an actionable claim; the extent of the attorney’s duty to commence a timely action depends on the immediacy of the running of the statutory period. Where sufficient time remains for successor counsel to act to protect the client’s interests in pursuing a claim, courts have concluded that a duty will not be imposed. In contrast, when the expiration of the statute of limitations is imminent, and little opportunity exists for a new attorney to commence a timely action, a duty to take action to protect the client’s rights will be imposed.

The First Department acknowledged that on a motion to dismiss, plaintiff was entitled to the benefit of every possible favorable inference reasonably drawn from the pleadings, as amplified by affidavits and exhibits in the record.2 According to the complaint, as described in the opinion, shortly after Guttierez’s death, her sister signed a retainer agreement with attorney Salvador Collazo for the commencement of a wrongful death action. Nothing happened until a year later, in November 2009, when Collazo sent the retainer agreement and medical authorizations to attorney Cary Tanzman.

A few months after that, in March 2010, Cabrera (who later was appointed administrator of decedent’s estate) entered into a retainer agreement with the Tanzman Law Office, which included a fee-sharing arrangement for Collazo, whose role was stated as limited to participating in “contacts” between the Tanzman law office and the client. In April, Collazo sent Tanzman certain documents Collazo had prepared to help expedite the issuance of limited letters of administration. (Later, on April 16, unknown to decedent’s family at the time, Collazo was convicted of immigration and visa fraud.) During the summer of 2010, both Collazo and Tanzman stopped responding to plaintiff’s attempts to contact them.

It was not until September 2010 that Tanzman sought the issuance of letters of administration, filing a certificate of lateness with Surrogate’s Court stating that “another attorney” had initially been contacted by the family and “did nothing on the file for over a year.” Tanzman wrote the Surrogate’s Court on Sept. 30, asking that letters be issued as soon as possible because of the pending expiration of the wrongful death statute of limitations. On Oct. 6, less than a month before the limitations period was to expire, letters of limited administration were issued. On Oct. 14, Collazo was sentenced to 24 months imprisonment. On Oct. 24, Tanzman died. Eleven days later, on Nov. 4, the statute of limitations expired without a lawsuit ever having been brought.

The First Department explained that the Tanzman defendants’ support for the motion was principally the death certificate showing that Tanzman died in Memorial Sloan-Kettering Cancer Center, but they included no information about the course of Tanzman’s illness, when he was hospitalized, the nature of his law practice or whether he took any steps to prepare a complaint for filing. Tanzman’s application to the Surrogate’s Court showed that he was aware that Collazo could not be relied on for assistance; further, the retainer agreement gave Collazo a limited role in the matter and, by that time, he had been convicted of a federal crime and was facing sentencing and disbarment.

Tanzman’s Sept. 30 letter to Surrogate’s Court demonstrated his awareness of the impending lapse of the statute of limitations, yet once letters of administration were issued on Oct. 6, Tanzman did not file a complaint or engage another attorney to file one, despite the availability of three attorneys associated with the firm as counsel. At no time did anyone inform plaintiff that the statute of limitations was about to expire so that she could protect her claim. Eight months after the statute had run, Tanzman’s office mailed the case file to plaintiff in response to her efforts to find out the status of her case. At that point, plaintiff learned of Tanzman’s death for the first time. Upon consulting with a new law firm, plaintiff learned for the first time that her claims were time-barred and Collazo was incarcerated.

The First Department concluded that plaintiff was entitled to an inference that Tanzman died as a result of a chronic, terminal illness that he knew, or should have known, presented the immediate risk that his ability to represent his client’s interests might be impaired. While the statute of limitations had not yet run at the time of Tanzman’s death, the record contained nothing suggesting the existence of any available means by which plaintiff might have preserved her wrongful death action. Giving the facts their most favorable intendment, the court ruled that at the time of Tanzman’s death the running of the statute of limitations against his client was a foregone conclusion because intervention by substitute counsel was not possible.

The decision below denying the motion to dismiss was affirmed.

Conclusion

Both Perez and Cabrera provide guidance for the future, and both illustrate the need to take care as to the applicable statute of limitations and to be vigilant as the statute runs.

Ann Pfau is the Statewide Coordinating Judge of the New York Medical Malpractice Program and former chief administrative judge of the New York State Judiciary.

Endnotes:

1. The case involved an unusual set of circumstances. Not only had one of the plaintiff’s lawyers died shortly before the running of the statute of limitations, the other had been sentenced to prison. The Appellate Division also noted that the treating physician’s license was revoked for “wanton disregard for basic medical practice” due to his treatment of plaintiff’s decedent and two other patients. Cabrera at n.1.

2. The Cabrera opinion mentioned the possibility that a motion for summary judgment on an expanded record “may or may not disclose facts demonstrating that, Tanzman was suddenly struck by a fatal and totally incapacitating episode of cancer rendering him unable to engage the services of another attorney to file a timely complaint on behalf of plaintiff or to communicate the necessity to do so.” Cabrera at 5.