Full Dismissal in Medical Malpractice Case
Shaub, Ahmuty, Citrin & Spratt, LLP attorney Kelsey O’Brien secured a significant victory on behalf of her clients — a physician and a major hospital — resulting in the complete dismissal of an action alleging medical malpractice.
After assessing the relevant medical records, deposition testimony, and pleadings, Kelsey moved on behalf of Defendants to dismiss pursuant to CPLR 3211(a)(5) and 214(a). The motion was predicated on Plaintiff’s failure to timely commence the action after discovering a retained foreign object.
In order to establish a prima facie entitlement to a dismissal, Defendants utilized a supportive expert affirmation from a board-certified physician who opined that the subject retained foreign object did not serve any continuing treatment purpose, and should not be classified as a chemical compound, fixation device, or prosthetic aid. This expert opinion supported the defensive position that the statute of limitations started running on the date of discovery of said retained foreign object.
Plaintiff submitted an opposition referencing the continuous treatment doctrine. However, the Court did not find Plaintiff’s argument persuasive in light of the defense’s compelling position.
The Court granted Kelsey’s motion in its entirety, dismissing all causes of action against Defendants. The Court’s Decision and Order supports the ongoing balance between the rights of patients seeking legal remedy, with the need to maintain the integrity of evidence and protect healthcare providers against the improper perpetual threat of legal action.
