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MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that plaintiff’s medical malpractice cause of action based upon a cancer misdiagnosis was time-barred. The misdiagnosis was made before the statute of limitations for cancer misdiagnosis was changed (it now runs from when the plaintiff knew or should have known of the misdiagnosis). The court rejected the attempt to extend the statute of limitations by asserting fraud-related causes of action based upon the malpractice and alleged concealment of the misdiagnosis:

Defendants … contend that plaintiff failed to state a cause of action for fraud or fraudulent concealment, and that they are not estopped from invoking the statute of limitations against plaintiff’s medical malpractice cause of action. We agree. “The elements of a cause of action for fraud in connection with charges of medical malpractice are knowledge on the part of the physician of the fact of his [or her] malpractice and of [the] patient’s injury in consequence thereof, coupled with a subsequent intentional, material misrepresentation by [the physician] to [the] patient known by [the physician] to be false at the time it was made, and on which the patient [justifiably] relied to his [or her] damage’ ” … . “The damages resulting from the fraud must be separate and distinct from those generated by the alleged malpractice” … . Additionally, “a defendant may be estopped to plead the [s]tatute of [l]imitations where [the] plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action”… . However, “without more, concealment by a physician or failure to disclose his [or her] own malpractice does not give rise to a cause of action in fraud or deceit separate and different from the customary malpractice action, thereby entitling the plaintiff to bring his [or her] action within the longer period limited for such claims” … . Forbes v Caris Life Sciences, Inc., 2018 NY Slip Op 02086, Fourth Dept 3-23-18

NEGLIGENCE (MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT))/MEDICAL MALPRACTICE  (MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT))/FRAUD (MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT))/STATUTE OF LIMITATIONS (CANCER MISDIAGNOSIS, MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT))/CANCER MISDIAGNOSIS (STATUTE OF LIMITATIONS, MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT))

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