The Statute of Limitations for medical malpractice actions in New York is 2 1/2 years (CPLR 214-a). The Statute of Limitations for ordinary negligence is 3 years. Where does supplying organs for transplants fall – is it medical malpractice or negligence? The First Department decided this issue yesterday in Rodriguez v Saal, 2007 NY Slip Op 06336.
In February 2002, decedent Juan Rodriguez underwent a kidney transplant procedure at the Rogosin Institute, with a replacement kidney from a cadaver supplied by the defendant New York Organ Donor Network (NYODN). Four and a half weeks later, a kidney biopsy was performed at New York Presbyterian Hospital which revealed lesions in the new kidney. Neither Rodriguez nor his wife was informed by Presbyterian of this finding. After several visits to Presbyterian for treatment to the implanted kidney, Rodriguez’s wife was advised that the kidney had been rejected and needed to be removed. The kidney was removed in September, 2002, but Rodriguez’s spouse maintained that neither she nor decedent was informed of the prior biopsy results at that time. The pathology examination report of the donor kidney, dated September 3, 2002, showed extensive tumor infiltration of the organ. Four days later it was determined these tumors were evidence of lymphoma. Decedent died on September 19, 2002. On or about October 24, 2002, Rodriguez’s wife received the autopsy report on decedent. It noted that decedent had metastatic undifferentiated malignant neoplasm (cancerous tumors) in a majority of his major organs. She claimed this was the first time she learned the transplanted kidney had been cancerous.
Rodriguez’s wife thus commenced an action against several defendants including the organ donation service NYODN. The action against NYODN was not commenced within 2 1/2 years, but it was commenced within 3 years. Thus, NYODN moved to dismiss the action as barred by the 2 1/2 year medical malpractice statute of limitations.
The First Department found that the plaintiff’s action against NYODN was one for negligence and not medical malpractice, and thus, allowed the action to proceed. The Court stated that conduct is deemed medical malpractice, rather than negligence, when it constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician. However, when a complaint does not allege negligence in furnishing medical treatment to a patient, but rather the failure of a medical provider in fulfilling a different duty, the claim sounds in negligence. The Court stated that in order for a cause of action sounding in medical malpractice to be maintained, the claim must be predicated upon the existence of an express or implied physician-patient relationship, and such a relationship is created when the professional services of a physician are rendered to and accepted by another person for the purposes of medical or surgical treatment. Here, the Court found that NYODN did not provide any type of medical treatment directly to decedent. Rather, the case against NYODN turned on its duties as a collection and distribution center of donated organs, and the issue to be resolved was whether NYODN breached its duty to exercise due care in its organ collection activities.
It does not appear that NYODN had anything to do with the kidney once it was supplied. But if it had, such as testing, or monitoring the kidney for rejection, could it then have escaped under the shorter 2 1/2 year medical malpractice statute of limitations?