Valentine v Schechner

[*1] Valentine v Schechner 2006 NY Slip Op 52577(U) [14 Misc 3d 1234(A)] Decided on September 29, 2006 Supreme Court, Bronx County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 29, 2006
Supreme Court, Bronx County

Dalma Valentine, as Administratrix of the Estate of Americo Valentin, Deceased, Plaintiff

against

Richard Schechner, M.D., Keith Rose, M.D., Takao Ohki, M.D., "John" Wainberg, M.D., "James" Mazera, M.D., and Montefiore Medical Center - Moses Division, Defendants



21789/2004



For Plaintiff

Anthony DiPietro Esq.

233 Broadway, New York, NY 10279

For Defendants

Elizabeth Sandonato Esq.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP

3 Gannett Drive, White Plains, NY 10604

Lucy Billings, J.

I.BACKGROUND

Plaintiff sues to recover for the decedent Americo Valentin's injuries and wrongful death from defendants' medical malpractice. Defendants Schechner, Ohki, and Montefiore Medical Center move to dismiss plaintiff's wrongful death claim on the ground that plaintiff commenced the action after the applicable statute of limitations expired. C.P.L.R. § 3211(a)(5); NY Est. Powers & Trust Law (EPTL) § 5-4.1(1). For the reasons explained below, the court grants the motion and dismisses plaintiff's wrongful death claim against these defendants.

II.TIMELINESS OF PLAINTIFF'S CLAIM

A decedent's personal representative must commence a wrongful death action within two years after the decedent's death. EPTL § 5-4.1(1); Baez v. New York City Health & Hosps. Corp., 80 NY2d 571, 576 (1992); Ortiz v. Hertz Corp., 212 AD2d 374, 375 (1st Dep't 1995); Greene v. Abbott Labs., 148 AD2d 403, 404 (1st Dep't 1989). Since the decedent died June 6, 2002, plaintiff was required to commence the wrongful death claim by June 6, 2004. She did not file the complaint containing the wrongful death claim until August 27, 2004.

III.EQUITABLE ESTOPPEL

If defendants induced plaintiff to refrain from filing an action through fraud, [*2]misrepresentation, or other deception, equitable estoppel may bar them from relying on a statute of limitations defense. Zumpano v. Quinn, 6 NY3d 666, 673-74 (2006); Simcuski v. Saeli, 44 NY2d 442, 449 (1978); Ross v. Louise Wise Servs., Inc., 28 AD3d 272, 282 (1st Dep't 2006). This principle applies to the statute of limitations for wrongful death claims. Dunefsky v. Montefiore Hosp. Med. Center, 162 AD2d 300 (1st Dep't 1990); Hetelekides v. Ford Motor Co., 299 AD2d 868 (4th Dep't 2002); Contento v. Corland Mem. Hosp., 237 AD2d 725, 725-26 (3d Dep't 1997); McIvor v. DiBenedetto, 121 AD2d 519, 520 (2d Dep't 1986). Plaintiff must show that defendants made a misrepresentation to her or breached a fiduciary duty they owed to her. Ross v. Louise Wise Servs., Inc., 28 AD3d at 282; Heffernan v. Marine Midland Bank, 283 AD2d 337, 338 (1st Dep't 2001); Hetelekides v. Ford Motor Co., 299 AD2d 868. Plaintiff attributes her delay in commencing the action to defendant hospital's refusal to provide her copies of the decedent's medical records before she was appointed administratrix of his estate.

Plaintiff claims she was entitled to these records as the decedent's distributee under New York Public Health Law § 18. While that statute allows specified persons access to patient medical records, that right is not absolute, even for a patient himself, and less so when disclosure to other persons is involved. Mantica v. New York State Dept. of Health, 94 NY2d 58, 62 (1999); Mougiannis v. North Shore Long Is. Jewish Health Sys., Inc., 25 AD3d 230, 232 (2d Dep't 2005). See Mele v. Travers, 293 AD2d 950, 953 n.2 (3d Dep't 2002). Plaintiff claims defendant hospital violated Public Health Law § 18(2)(d), which provides that: upon the written request of any qualified person, a health care provider shall furnish to such person, within a reasonable time, a copy of any patient information requested . . . .

"Qualified person" currently includes "a distributee of any deceased subject for whom no personal representative, as defined in the estates, powers and trust law, has been appointed." NY Pub. Health Law § 18(1)(g). A distributee is "a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution." EPTL § 1-2.5. See Hernandez v. New York City Health & Hosps. Corp., 78 NY2d 687, 691 (1991). A personal representative is a person who has been issued letters to administer a decedent's estate. EPTL § 1-2.13; Hernandez v. New York City Health & Hosps. Corp., 78 NY2d at 692.

Before October 26, 2004, however, Public Health Law § 18(1)(g)'s definition of qualified persons did not include distributees as set forth above. 2004 NY Laws ch. 634. See Mougiannis v. North Shore Long Is. Jewish Health Sys., Inc., 25 AD3d at 232-33 & n.1. This prior omission compels an interpretation that before the 2004 amendment the legislature intended to exclude distributees as qualified persons. Id. at 233. Since plaintiff's requests for copies of decedent's medical records, including her written request March 26, 2004, all predate amended Public Health Law § 18(1)(g)'s effective date, plaintiff was not entitled to receive those records under Public Health Law § 18(2)(d) when she requested them.

Plaintiff also claims defendants failed to furnish copies of the medical records within 10 days, as required by Public Health Law § 18(2)(g):

In the event that a practitioner does not have space available to permit the inspection of patient information, the practitioner may, in the alternative, furnish a qualified person a copy of such information within ten days.

As discussed above, plaintiff was not a qualified person under the statute when she requested the decedent's records. Moreover, § 18(2)(g) applies only to those categories of qualified persons entitled to inspection of records, as well as copies under § 18(2)(d), such as patients themselves or their parents, guardians, or committees, but not including distributees, estates, or other representatives. NY Pub. Health Law § 18(2)(a)-(c). See Mougiannis v. North Shore Long Is. Jewish Health Sys., Inc., 25 AD3d at 233 & n.2. Upon a request for inspection by a person entitled to it, a practitioner with inadequate space would be allowed the alternative of furnishing copies. While plaintiff, even as a qualified person, was not entitled to inspection, neither does she show that she requested to inspect the decedent's records; she shows only that she requested [*3]copies. In addition, § 18(2)(g) applies to practitioners, defined as physicians, physician assistants, chiropractors, dentists, dental hygienists, physical therapists, nurses, podiatrists, optometrists, ophthalmic dispensers, psychologists, social workers, occupational therapists, speech and language therapists, and audiologists. NY Pub. Health Law § § 18(1)(d). See NY Educ. Law arts. 130, 131-B, 132, 133, 136, 139, 141, 143, 149, 153, 154, 156, 159. Plaintiff's requests were to defendant hospital, a "health care facility" rather than a "practitioner." NY Pub. Health Law § 18(1)(c) and (d).

Even had plaintiff shown that defendants violated the Public Health Law, she fails to demonstrate how such violations deceptively induced her to commence the wrongful death claim after the statute of limitations expired. Dunefsky v. Montefiore Hosp. Med. Center, 162 AD2d 300. She nowhere indicates what deception defendants engaged in that prevented her from filing the action. Kenny v. RBC Royal Bank, 22 AD3d 385, 386 (1st Dep't 2005). Without a showing of defendants' fraud, misrepresentation, or deception, the court need not address whether plaintiff has shown reasonable reliance on their actions. Zumpano v. Quinn, 6 NY3d at 674; Ross v. Louise Wise Servs., Inc., 28 AD3d at 282; Greene v. Abbott Labs., 148 AD2d at 405.

Plaintiff also may equitably estop defendants from relying on the statute of limitations defense for having denied the requested records, if their nondisclosure breached a fiduciary duty to plaintiff. Ross v. Louise Wise Servs., Inc., 28 AD3d at 282; Nick v. Greenfield, 299 AD2d 172, 173 (1st Dep't 2002); Hetelekides v. Ford Motor Co., 299 AD2d 868. Plaintiff further fails, however, to show that defendants owed a duty to act or advise plaintiff for her benefit on matters within the scope of their relationship. Id. See EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 (2005).

An additional requirement for equitable estoppel is plaintiff's diligence. Ross v. Louise Wise Servs., Inc., 28 AD3d at 282; Matter of Allstate Ins. Co., 167 AD2d 208, 211 (1st Dep't 1990); Greene v. Abbott Labs., 148 AD2d at 405. While her commencement of the action two months after receiving the decedent's medical records may show diligence in that period, she does not explain her 18 months delay in seeking appointment as administratrix, to enable her to obtain the records sooner, or her failure to avail herself of the remedies for defendants' denial of her request for the records. NY Pub. Health Law § 18(3)(e) and (f); DeLaurenzo v. Nadler, 8 AD3d 609, 610 (2d Dep't 2004); Mele v. Travers, 293 AD2d at 952 n.2. Thus her showing of this essential element, the diligence in commencing the action required to equitably estop defendants from relying on the statute of limitations defense, falls short as well.

IV.CONCLUSION

For each of the above reasons, the court grants the motion by defendants Schechner, Ohki, and Montefiore Medical Center to dismiss plaintiff's wrongful death claim against them.

DATED: September 29, 2006

_____________________________

LUCY BILLINGS, J.S.C.