You are here: / / THE ACTION, WHICH STEMMED FROM PLAINTIFF’S BEING DROPPED IN THE DELIVERY...
, ,

THE ACTION, WHICH STEMMED FROM PLAINTIFF’S BEING DROPPED IN THE DELIVERY ROOM IMMEDIATELY AFTER BIRTH, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s action, which stemmed from being dropped in the delivery room immediately after birth in 1999, sounded in medical malpractice, not negligence, and was therefore time-barred:

CPLR 208 provides that the statute of limitations is tolled throughout the period of infancy, but limits such toll to 10 years in medical malpractice actions … . In determining whether conduct should be deemed medical malpractice or ordinary negligence, the critical factor is the nature of the duty owed to the plaintiff that the defendant is alleged to have breached … . A negligent act or omission by a health care provider that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician to a particular patient constitutes medical malpractice … .

Here, the defendant established … the conduct at issue derived from the duty owed to plaintiff by the defendant as a result of the physician-patient relationship and was substantially related to the plaintiff’s medical treatment … . Rojas v Tandon, 2022 NY Slip Op 04989, Second Dept 8-17-22

Practice Point: The infancy toll of the statute of limitations in CPLR 208 is limited to ten years in medical malpractice cases. Here plaintiff alleged she was dropped in the delivery room immediately after birth in 1999. The action would have been timely if it sounded in negligence. But the action was deemed to sound in medical malpractice rendering it time-barred.

 

You might also like
SURGEON, WHO HAD NO MEMORY OF PLAINTIFF’S PROCEDURE, SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY ABOUT HIS USUAL CUSTOM AND PRACTICE IN PERFORMING A HERNIA REPAIR, DEFENSE JUDGMENT REVERSED IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).
THIS LAWSUIT BY AN EMPLOYER AGAINST AN EMPLOYEE WHO ALLEGEDLY USED PLAINTIFF’S PROPRIETARY INFORMATION AFTER RESIGNING PRESENTS FACT-SPECIFIC ISSUES IN THE CONTEXT OF RESTRICTIVE COVENANTS IN THE EMPLOYMENT CONTRACT, COPYRIGHT LAW (PRE-EMPTION OF STATE LAW CLAIMS), TRADE SECRETS, AND THE PROPRIETY OF A PRELIMINARY INJUNCTION; ALL OF THESE COMPLEX ISSUES CANNOT BE FAIRLY SUMMARIZED HERE; THE DECISION IS WORTH CONSULTING (SECOND DEPT).
PLAINTIFF SLIPPED ON ROSIN PAPER WHICH WAS PLACED ON THE STEPS AS AN INTEGRAL PART OF THE WORK, LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY DISMISSED.
SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT).
INCONSEQUENTIAL VIOLATIONS OF THE ELECTION LAW DID NOT INVALIDATE THE DESIGNATING PETITION (SECOND DEPT).
FOR CAUSE CHALLENGE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED.
HEARSAY STATEMENTS BY THE ONLY WITNESS TO IDENTIFY DEFENDANT AS A PERPETRATOR INDICATED THE WITNESS WAS NOT IN FACT ABLE TO IDENTIFY ANY OF THE PERPETRATORS; THE INCONSISTENT STATEMENTS SHOULD HAVE BEEN ADMITTED BECAUSE THEY WENT TO A CORE ISSUE IN THE CASE IMPLICATING THE RIGHT TO PUT ON A DEFENSE; CONVICTION REVERSED (SECOND DEPT).
SENTENCE FOR CONSPIRACY COUNT OF AN INDICTMENT SHOULD HAVE BEEN IMPOSED CONCURRENTLY WITH SENTENCES FOR OVERT ACTS WITH WHICH DEFENDANT HAD PREVIOUSLY BEEN CHARGED IN A SUPERIOR COURT INFORMATION.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

HERE DEFENDANT, WHO PLED GUILTY TO BURGLARY AS A SEXUALLY MOTIVATED FELONY,... CONFLICTING EXPERT OPINIONS IN THIS MEDICAL MALPRACTICE ACTION REQUIRED DENIAL...