Reset A A Font size: Print

Supreme Court, Appellate Division, Second Department, New York.


Decided: October 26, 1998

Before JOY, J.P., and FRIEDMANN, KRAUSMAN and LUCIANO, JJ. O'Connor, McGuinness, Conte, Doyle, Oleson & Collins (Mauro & Goldberg, Great Neck [Kenneth Mauro and Timothy R. Capowski], of counsel), for appellant. Barasch & McGarry, P.C., New York City (Dominique Penson, of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Rosato, J.), entered October 28, 1997, which denied its motion to dismiss the complaint as time-barred.

ORDERED that the order is reversed, on the law, with costs, the defendant's motion is granted, and the complaint is dismissed.

In October 1992, when the plaintiff was pregnant, she was given an HIV blood test at the defendant Phelps Memorial Hospital, and was told a month later that her blood had tested negative for HIV infection.   In fact, the report in her hospital file indicating that she was HIV negative belonged to another patient.   According to the plaintiff's complaint, served in December 1996, she only learned in December 1995 that she was HIV positive and that two of her four children, born after she was given the false report, were also HIV positive.   She blamed the defendant, inter alia, for the three-year delay in her diagnosis and treatment.   The defendant's motion to dismiss the complaint as untimely was denied by the Supreme Court, which ruled that the mix-up in the HIV test results was ordinary negligence rather than medical malpractice, and the Statute of Limitations began to run from the plaintiff's discovery of the defendant's mistake rather than from the date the mistake occurred.

 The court did not err in ruling that the switching of the plaintiff's HIV test results with those of another patient was an act of simple negligence rather than medical malpractice (see, e.g., Caracci v. State of New York, 203 A.D.2d 842, 611 N.Y.S.2d 344;  McKinney v. Bellevue Hosp., 183 A.D.2d 563, 584 N.Y.S.2d 538).   However, until the Legislature provides otherwise, the three-year Statute of Limitations applicable to a negligence action like the one at bar, which does not involve exposure to toxic substances (cf., CPLR 214-c), commences to run on the date of the occurrence of the injury, not on the date when it was discovered (CPLR 214 [5];  see, e.g., Blanco v. Am. Tel. & Tel. Co., 90 N.Y.2d 757, 666 N.Y.S.2d 536, 689 N.E.2d 506;  Snyder v. Town Insulation, 81 N.Y.2d 429, 599 N.Y.S.2d 515, 615 N.E.2d 999;  Jackson v. L.P. Transp., 72 N.Y.2d 975, 534 N.Y.S.2d 362, 530 N.E.2d 1282;  Thornton v. Roosevelt Hosp., 47 N.Y.2d 780, 417 N.Y.S.2d 920, 391 N.E.2d 1002).   Accordingly, the plaintiff's action is time-barred.


Copied to clipboard