KAMRUDDIN v. DESMOND

Citation Codes

Equivalent Citations

citation codes

Docket Number

2000-08367, 2000-08369

Attorney(S)

Furey, Kerley, Walsh, Matera Cinquemani, P.C., Mineola, N.Y. (Lauren B. Bristol of counsel), for appellants. Wolf Fuhrman, New York, N.Y. (Carole R. Moskowitz of counsel), for respondent.

Judges

Nancy E. Smith

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Smart Summary

Factual and Procedural Background

This action arises from a medical malpractice and lack of informed consent claim brought by the plaintiff, Mohammed Kamruddin, against defendants Sanjiv Chopra and Steinway Medical. The plaintiff alleges that the appellants improperly treated him with steroids from 1994 through October 3, 1995, resulting in bilateral vascular necrosis of both hips and requiring bilateral hip replacement surgery in October 1996. Beginning in June 1997, the plaintiff requested his medical records from the appellants via signed and notarized authorizations. These requests were ignored until the plaintiff sought court intervention, resulting in an order to show cause served on the appellants in February 1998 to compel production of the records. The records were produced on April 3, 1998, just before the statute of limitations expired. The plaintiff commenced the action in May 1998. The Supreme Court, Queens County, after a hearing, denied the appellants’ cross motion to dismiss the complaint as time-barred and dismissed their affirmative defenses based on the statute of limitations, finding intentional misconduct in the delay of producing records and applying equitable estoppel to preclude the appellants from asserting the statute of limitations defense. The appellants appealed from both the decision and order dated June 22, 2000.

Legal Issues Presented

Whether the appellants' delay in producing the plaintiff’s medical records constituted intentional misconduct sufficient to equitably estop them from asserting the statute of limitations as an affirmative defense under CPLR 214-a.
Whether the plaintiff was required to assert fraudulent concealment and justifiable reliance in the complaint to invoke equitable estoppel against the statute of limitations defense.
Whether the plaintiff could have timely commenced the action despite the delay in obtaining medical records, including by filing without a certificate of merit or by seeking an extension under CPLR 3012-a and CPLR 3012(d).

Arguments of the Parties

Appellants' Arguments

The appellants argued that the complaint should be dismissed as time-barred under CPLR 214-a.
They contended that the plaintiff failed to timely commence the action and that the delay in producing medical records did not justify equitable estoppel.
The appellants asserted that the plaintiff could have commenced the action without medical records or certificate of merit, relying on CPLR 3012-a(d) and CPLR 3012(d) to extend time to serve the complaint.
They maintained that the plaintiff did not plead fraudulent concealment or justifiable reliance in the complaint, which are prerequisites to equitable estoppel.

Respondent's Arguments

The plaintiff argued that the appellants’ intentional delay in producing medical records constituted misconduct that precluded a timely commencement of the action.
The plaintiff relied on equitable estoppel to bar the appellants from asserting the statute of limitations defense.
He contended that requiring him to commence the action without access to medical records or expert evaluation would force him to proceed blindly and allow the appellants to profit from their wrongdoing.
The plaintiff maintained that the doctrine of equitable estoppel applies even without explicit pleading of fraudulent concealment when there is purposeful concealment of records.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Schicchi v. Green Constr. Corp., 100 A.D.2d 509	No appeal lies from a decision.	Used to dismiss the appeal from the Supreme Court decision as impermissible.
Matter of Steyer, 70 N.Y.2d 990	Equitable estoppel precludes a party from asserting statute of limitations when there is intentional misconduct.	Supported the finding that appellants’ intentional delay barred them from raising statute of limitations defense.
Simcuski v. Saeli, 44 N.Y.2d 442	Equitable estoppel applies to prevent a party from profiting from own wrong; fraudulent concealment can toll statute of limitations.	Reinforced the principle that purposeful concealment justifies estoppel.
Arbutina v. Bahuleyan, 75 A.D.2d 84	Delay in producing medical records can trigger equitable estoppel.	Supported the court’s conclusion that delay in producing records precluded statute of limitations defense.
General Stencils v. Chiappa, 18 N.Y.2d 125	No one may take advantage of his or her own wrong.	Used to underpin the equitable estoppel doctrine applied here.
Storey v. Sum, 151 A.D.2d 991	Equitable estoppel may arise from unreasonable delay in producing records to attorney.	Supported application of estoppel despite plaintiff’s awareness of claim.
Chesrow v. Galiani, 234 A.D.2d 9	Purposeful concealment is the determinative factor for equitable estoppel.	Further supported the court’s analysis of misconduct.
Cassidy v. County of Nassau, 84 A.D.2d 742	Equitable estoppel applies when medical professional lies to conceal malpractice.	Referenced in dissent to frame limits of estoppel.
Gleason v. Spota, 194 A.D.2d 764	Offending party's conduct must effectively prevent timely action for estoppel.	Used by dissent to argue against estoppel application here.
McIvor v. DiBenedetto, 121 A.D.2d 519	Similar to Gleason on estoppel requirements.	Also cited in dissent.
Casiano v. New York Hosp. Cornell Med. Center, 169 A.D.2d 806	Failure to file certificate of merit does not mandate dismissal.	Used by dissent to argue plaintiff could have timely commenced action without records.
Kolb v. Strogh, 158 A.D.2d 15	Same as Casiano regarding certificate of merit.	Referenced in dissent.
Rice v. Vandenebossche, 185 A.D.2d 336	Same principle on certificate of merit and dismissal.	Referenced in dissent.
Schiraldi v. Brooklyn Cumberland Hosp., 70 A.D.2d 911	Extension of time to serve complaint may be granted for good cause.	Used by dissent to argue plaintiff could have sought extension.
Immediate v. St. John's Queens Hosp., 48 N.Y.2d 671	To invoke equitable estoppel, complaint must allege fraudulent concealment and justifiable reliance.	Applied by dissent to challenge estoppel without such allegations.
Krol v. Valone, 80 A.D.2d 997	Same as Immediate on estoppel prerequisites.	Referenced by dissent.

Court's Reasoning and Analysis

The majority court found that the appellants’ delay in producing the plaintiff’s medical records constituted intentional misconduct. This misconduct precluded the plaintiff from timely commencing the action, thereby justifying application of the equitable estoppel doctrine to bar the appellants from asserting the statute of limitations defense. The court grounded this conclusion in well-established principles that no party may profit from their own wrongdoing and that purposeful concealment of material evidence, such as medical records, can toll the statute of limitations. The court rejected the dissent’s view that the plaintiff’s awareness of the claim and failure to plead fraudulent concealment barred estoppel, emphasizing that equitable estoppel may arise from unreasonable delay in record production even when the plaintiff is investigating the claim. The court also reasoned that requiring the plaintiff to commence the action without access to records or expert evaluation would unfairly force him to proceed blindly and reward the appellants’ misconduct. The appellants’ remaining contentions were found without merit.

The dissenting opinion, while acknowledging the appellants’ conduct as questionable, argued that the plaintiff’s failure to timely file was not excused by equitable estoppel. The dissent emphasized that the plaintiff was aware of the malpractice claim and could have timely commenced the action relying on statutory provisions allowing delay in filing a certificate of merit (CPLR 3012-a[d]) or seeking an extension (CPLR 3012[d]). The dissent further noted that equitable estoppel requires allegations of fraudulent concealment and justifiable reliance in the complaint, which were absent here. Accordingly, the dissent would have reversed the order and dismissed the complaint as time-barred.

Holding and Implications

The court dismissed the appeal from the decision as no appeal lies from a decision and affirmed the order of the Supreme Court denying the appellants’ cross motion to dismiss the complaint as time-barred and dismissing their affirmative defenses based on the statute of limitations. The plaintiff was awarded one bill of costs.

The direct effect of this decision is that the appellants are estopped from asserting the statute of limitations defense due to their intentional delay in producing medical records, allowing the plaintiff’s medical malpractice action to proceed. The opinion does not establish new precedent but applies existing equitable estoppel principles to the facts of this case, reinforcing protections against defendants profiting from misconduct in discovery delays.

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MOHAMMED KAMRUDDIN, respondent, v. RICHARD W. DESMOND, ETC., ET AL., defendants, SANJIV CHOPRA, ETC., ET AL., appellants.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,

ORDERED that the order is affirmed; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

In the instant action to recover damages for medical malpractice and lack of informed consent, the plaintiff claims that the appellants improperly treated him with steroids, allegedly resulting in bilateral vascular necrosis of both hips, requiring bilateral hip replacement surgery in October 1996, when he was 25 years old. The course of treatment allegedly occurred from 1994 through October 3, 1995.

Starting in June 1997, the plaintiff demanded copies of his medical records from the appellants, by signed and notarized authorizations. His requests went unanswered until the plaintiff sought court intervention. In February 1998, the appellants were served with an order to show cause in a special proceeding to compel production of the records. The records were ultimately produced on April 3, 1998, the last date before expiration of the statute of limitations. The instant action was commenced in May 1998.

The Supreme Court, after a hearing, determined that the appellants' delay in producing the records constituted intentional misconduct, which precluded the plaintiff from timely commencing the instant action. Based upon that finding, the Supreme Court found that the appellants were equitably estopped from pleading the statute of limitations as an affirmative defense (see Matter of Steyer, 70 N.Y.2d 990; Simcuski v. Saeli, 44 N.Y.2d 442; Arbutina v. Bahuleyan, 75 A.D.2d 84). We affirm.

The principle that the appellants' intentional wrongdoing should preclude them from asserting the statute of limitations as a affirmative defense derives from the corollary principle, deeply rooted in our jurisprudence, that no one may take advantage of his or her own wrong (see Matter of Steyer, supra, at 993; General Stencils v. Chiappa, 18 N.Y.2d 125, 126-127). Where a medical malpractice claim is asserted, the patient's medical records are material to reaching a responsible decision on whether there is grounds for a lawsuit (see Arbutina v. Bahuleyan, supra, at 86).

The dissent acknowledges that the appellants' conduct was "highly questionable." However, the dissent asserts that in order for equitable estoppel to apply, the plaintiff must assert in the complaint fraudulent concealment of the malpractice and justifiable reliance which prevented the plaintiff from discovering the malpractice. In the instant case, the plaintiff was aware that he may have a cause of action sounding in medical malpractice: that awareness caused him to seek the advice of an attorney, and demand a copy of his medical records in the first instance.

However, equitable estoppel may arise where there is an unreasonable delay in delivering records to an attorney consulted in a suspected case of malpractice (see Arbutina v. Bahuleyan, supra, at 87; Storey v. Sum, 151 A.D.2d 991, 992-993). The fact that a claim is under investigation despite the intentional concealment does not preclude application of the doctrine of equitable estoppel (see Matter of Steyer, supra). The determinative factor is whether there is purposeful concealment (see Simcuski v. Saeli, supra; Chesrow v. Galiani, 234 A.D.2d 9; Storey v. Sum, supra, at 993).

The dissent asserts that the plaintiff could have commenced an action sounding in medical malpractice, without examining his records, without consulting an expert as to the merits of his claim, and without submitting a certificate of merit pursuant to CPLR 3012-a, on the ground that medical records were requested but not yet produced (see CPLR 3012-a[d]). The dissent further asserts that the plaintiff could have commenced the action without service of a complaint, and then asked the court, in its discretion, to extend the time to serve the complaint pursuant to CPLR 3012(d). However, the dissent acknowledges that the plaintiff's commencement of the action would have to be based upon a "good faith belief as to the legitimacy of his claim." Indeed, the plaintiff's counsel could have been subject to sanctions pursuant to 22 NYCRR § 130-1.1(a) for asserting a frivolous claim. 22 NYCRR § 130-1.1-a(b) provides that "[b]y signing a paper, an attorney or party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the paper or the contentions therein are not frivolous."

The appellants were in a position to know what was in the plaintiff's medical records, and that those records indicated that there was a good faith basis for commencement of the action. However, the plaintiff's attorney did not have the benefit of such hindsight. To impose an obligation on the plaintiff to blindly proceed in face of intentional concealment would allow the wrongdoer to chart the course of the proceedings, and ultimately to profit from his or her own wrongdoing.

The appellants' remaining contention is without merit.

KRAUSMAN, GOLDSTEIN and FRIEDMANN, JJ., concur.

SMITH, J., concurs in part and dissents in part, and votes to dismiss the appeal from the decision dated June 22, 2000, and to reverse the order dated June 22, 2000, deny the motion, grant the cross motion, and dismiss the complaint insofar as asserted against the appellants, with the following memorandum, in which SANTUCCI, J.P., concurs.

The key element of the subject appeal is whether the appellants' attorney's failure to comply with the plaintiff's request for his medical records prevented the plaintiff from commencing this action in a timely manner. I respectfully disagree with my colleagues in the majority, and conclude that the appellants' alleged dilatory actions did not excuse the plaintiff from filing this action within the time prescribed in CPLR 214-a, and vote to reverse the order of the Supreme Court and dismiss this complaint.

Initially, it is correct that equitable estoppel may be applied to extend the period under the statute of limitations in medical malpractice cases, particularly when the medical professional lied to conceal the malpractice (see Simcuski v. Saeli, 44 N.Y.2d 442; Cassidy v. County of Nassau, 84 A.D.2d 742). However, it must be shown that the offending party's conduct effectively prevented the plaintiff from bringing a timely action in order for the doctrine to apply (see Gleason v. Spota, 194 A.D.2d 764; McIvor v. DiBenedetto, 121 A.D.2d 519; see generally General Stencils v. Chiappa, 18 N.Y.2d 125).

In the present case, the plaintiff was aware of the substance of his malpractice claim, and the appellants' conduct did not serve to hide the prior act of malpractice. Rather, the plaintiff's contention is that he failed to file a timely complaint because he could not submit a certificate of merit without the medical records he sought. This argument is unpersuasive. CPLR 3012-a does require that a certificate of merit accompany a complaint in a medical malpractice action. Nevertheless, the CPLR recognizes and anticipates the situation presented in the present case. Under CPLR 3012-a (d), "If a request by the plaintiff for the records of the plaintiff's medical or dental treatment by the defendants has been made and such records have not been produced, the plaintiff shall not be required to serve the certificate required by this section until ninety days after such records have been produced."

Clearly, the plaintiff here could have filed this action based upon a good faith belief as to the legitimacy of his claim and specifically evoked CPLR 3012-a(d) affirming that he was still waiting for the production of his medical records for the purpose of submitting a certificate of merit. Further, dismissal of the action would not be the sanction for the failure to file a certificate of merit pursuant to CPLR 3012-a (see Casiano v. New York Hosp. Cornell Med. Center, 169 A.D.2d 806; Kolb v. Strogh, 158 A.D.2d 15; see also Rice v. Vandenebossche, 185 A.D.2d 336).

Additionally, the plaintiff could have sought an extension of time to file his action pursuant to CPLR 3012. Under CPLR 3012(d), the plaintiff could have petitioned the court for an extension of time in which to serve the pleading. He could have rationally argued that his reasonable excuse for not filing his complaint was a good faith belief that he needed full discovery in order to file a legitimate certificate of merit (see generally Schiraldi v. Brooklyn Cumberland Hosp., 70 A.D.2d 911).

Lastly, it has been determined that in order to invoke equitable estoppel in medical malpractice cases for the purpose of denying the defendant the use of the affirmative defense of the statute of limitations, the complaint must assert an accusation of fraudulent concealment of the malpractice (see Immediate v. St. John's Queens Hosp., 48 N.Y.2d 671) and justifiable reliance upon the defendant's intentional misrepresentation which prevented the plaintiff from discovering the malpractice (see Simcuski v. Saeli, supra; Krol v. Valone, 80 A.D.2d 997). Here, there is nothing in the record which demonstrated that the plaintiff made such an accusation in his complaint. Therefore, the appellants cannot be precluded from pleading the statute of limitations as an affirmative defense.

Although the appellants' conduct regarding the disclosure of the plaintiff's medical records is highly questionable, the plaintiff failed to take advantage of any of the procedural safeguards which were statutorily made available to him pursuant to the CPLR. His lack of action prevented the tolling of the statute of limitations found in CPLR 214-a. Accordingly, the time to have filed the complaint in the present case had expired and I would reverse the order of the Supreme Court and dismiss this complaint.