Is The Pen Mighter Than the Sword?
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Today's Lesson From the Court of Appeals--Only Some Parties to a Lawsuit Can Drag Their Feet

Gavel_2I'm inclined to disagree with the New York Court of Appeal's recent decision in Pahlad v Brustman 2007 NY Slip Op 02592.  The decision is brief and simply upholds the  First Department's decision which granted the motion of medical malpractice defendants to dismiss the Complaint.  The First Department and the Court of Appeals concluded that equitable estoppel did not apply to toll the 2 1/2 year statute of limitations since the plaintiffs had sufficient and timely notice of the facts such that they should have made further inquiry prior to the expiration of the statute of limitations.

The facts of this case, which are set forth in the First Department's decision, are decidedly sad.  The infant plaintiff was born suffering from Cornelia de Lange syndrome.  In her case it was manifested by the absence of her upper limbs.  Her parents brought suit seeking recovery for their economic expenses, since a cause of action for wrongful birth on behalf of the infant plaintiff does not exist in New York.

The child was born on September 25, 2000.  An ultrasound had been conducted on June 1, 2000 and it was ultimately learned that the narrative report for that ultrasound, which stated that all 4 limbs had been present, was incorrect. 

On June 1, 2001, the plaintiffs sought a copy of the complete medical file from the defendant  OB.  The records, sans ultrasound films, were provided shortly thereafter.  In August 2001 the plaintiffs sought copies of the complete medical file from the defendant hospital and in October 2001, once again, without including the imaging studies.   Both sets of records did include the erroneous ultrasound narrative report, however.

19 months later and 2 weeks before the expiration of the statute of limitations the plaintiffs specifically sought to obtain copies of the sonogram films, which the defendants failed to provide until after the statute of limitations had expired.

I'm leaning toward agreeing with the dissent in the First Department's decision: 

Plaintiffs could not properly have commenced this action prior to obtaining the films, since they could not make a good faith claim of negligence until that time. As the expert consulted by plaintiffs asserted, until those films were obtained and reviewed by their expert, plaintiffs had no way of determining whether malpractice had been committed in the performing and reporting of the results of the sonogram. The majority's observation that plaintiffs had notice that "something was amiss" does not, in my view, equate to a good faith basis to commence an action...Without the opportunity to view the film itself, no one could state whether the failure of the professionals who conducted the ultrasound and read the results to notice and report the fetal abnormalities amounted to negligence, or was instead a reasonable conclusion based upon what could be seen on the films.

While the director of risk management at the hospital states that no specific request for the sonogram films was made until March 11, 2003, and that the hospital's policy is to await such a specific request before turning over such items, there can have been no doubt that plaintiffs' attorney in this action would need to see the sonogram films themselves, not just the written summaries of their results. The assertion of such a purported policy does not necessarily justify the failure to turn them over, particularly since the hospital was not forthcoming with the films even after the specific request was made. Indeed, even after plaintiff's counsel, with dogged persistence, eventually succeeded in independently locating the hospital division in possession of the sonogram images, and when he notified the hospital of exactly where they could be found so copies could be provided to him, the hospital still failed to cooperate in providing counsel with a copy.

It seems to me that this decision effectively encourages hospitals to drag their feet when responding to requests for medical records.  Specifically, I would argue that med mal defendants now have the green light to sit on medical records that are particularly critical to a case as long as the plaintiff's counsel doesn't make a specific request for the particular incriminating document or imaging study that would reveal liability.

Of course, I'm sure that my numerous family members employed in the medical field would strongly disagree with me on this one, as would the defense bar.  And, for that matter, the New York Court of Appeals.  Which just goes to show that you can't win 'em all.

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