Opinion
2012-11-9
Daniel MANCUSO, as executor of the Estate of Rose M. Kij, Deceased, Plaintiff–Respondent, v. KALEIDA HEALTH, doing business as Millard Fillmore Gates Hospital, et al., Defendants, and Twin City Ambulance Corporation, Defendant–Appellant.
MacDonald & Hafner, Esqs., Buffalo (Phyliss A. Hafner of Counsel), for Defendant–Appellant. Brown Chiari LLP, Lancaster (David W. Olson of Counsel), for Plaintiff–Respondent.
MacDonald & Hafner, Esqs., Buffalo (Phyliss A. Hafner of Counsel), for Defendant–Appellant. Brown Chiari LLP, Lancaster (David W. Olson of Counsel), for Plaintiff–Respondent.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, AND WHALEN, JJ.
MEMORANDUM:
Plaintiff commenced this action against numerous defendants alleging, inter alia, that their negligence caused the wrongful death of Rose M. Kij (decedent). In addition, plaintiff alleged in the seventh cause of action that Twin City Ambulance Corporation (defendant) “was negligent in the medical transportation services that it provided to [decedent].” Defendant moved pursuant to CPLR 3211 and 3212 for an order dismissing the amended complaint against it based upon the statute of limitations and plaintiff's failure to attach a certificate of merit to the amended complaint ( seeCPLR 3012–a). Supreme Court granted that part of the motion seeking dismissal of the claim for wrongful death against defendant in the fourth cause of action, but it denied that part of the motion seeking dismissal of the seventh cause of action, concluding that such cause of action sounded in ordinary negligence. We now affirm.
Plaintiff's sole basis for liability against defendant in the seventh cause of action is that defendant failed to deliver to the hospital a medication list that was prepared by a member of decedent's family and given to defendant's employees by that family member. While we agree with defendant that a mistake in taking a patient's medical history is a claim that sounds in medical malpractice ( see generally Bleiler v. Bodnar, 65 N.Y.2d 65, 72, 489 N.Y.S.2d 885, 479 N.E.2d 230), the claim here concerns the “failure to communicate significant medical findings to a ... treating physician,” and that claim sounds in ordinary negligence ( Mosezhnik v. Berenstein, 33 A.D.3d 895, 898, 823 N.Y.S.2d 459;see Glasheen v. Long Is. Diagnostic Imaging, 306 A.D.2d 515, 515, 763 N.Y.S.2d 832,lv. denied3 N.Y.3d 612, 788 N.Y.S.2d 668, 821 N.E.2d 973;Yaniv v. Taub, 256 A.D.2d 273, 274, 683 N.Y.S.2d 35). Because the seventh cause of action sounds in ordinary negligence, it is governed by the three-year statute of limitations found in CPLR 214 and is thus timely. Furthermore, “[i]n ordinary negligence, a medical affidavit setting out merit is unnecessary” ( Matter of Caracci v. State of New York, 178 A.D.2d 876, 877, 577 N.Y.S.2d 925;see generallyCPLR 3012–a).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.