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NY: patient suffered from bedsores before death: patient's incompetency barred limitations defense.

CASE FACTS: On May 17, 2002, a suit for medical malpractice was brought against Dr. Israel Jacobowitz as well as other physicians and defendants on behalf of the deceased Daniel Schulman. The suit arose from the alleged medical malpractice of the defendants in failing to prevent and properly treat bed sores, which allegedly led to the death of Daniel Schulman on January 14, 2000. The patient suffered a stroke on July 27, 1999, while hospitalized at SUNY--Downstate Medical Center where he remained in the defendants' care until November 9, 1999, at which time, he was transferred to a nursing home. The complaint alleged causes of action for wrongful death and conscious pain and suffering. In opposition to the defendants' motion to dismiss the complaint as time barred under New York's statute of limitations, the plaintiff conceded that the claim for wrongful death was, in fact, time-barred by the statute of limitations. However, the plaintiff contended that the running of the statute of limitations for the decedent's conscious pain and suffering was not time barred. The plaintiff argued that because the patient was incompetent during a significant part of the time in question, the plaintiff was entitled to a tolling of the statute of limitations during that period of time. After a hearing on that issue, the Supreme Court of New York held that the plaintiff failed to prove that the decedent's disability came within the scope of tolling provisions and dismissed the plaintiff's complaint as time-barred. The plaintiff appealed.

COURT'S OPINION: The New York Supreme Court, Appellate Division, reversed the judgment of the lower court. The court held, inter alia, that the Supreme Court had properly ordered a hearing on the patient's mental condition during the time in question. However, the court disagreed with the lower court's determination. The court found that the plaintiff presented significant testimony by a board certified medical expert that the patient, after suffering a stroke, was "significantly cognitively impaired." The court noted that the plaintiff's medical expert opined that the patient fluctuated between a stuporous and obtunded level of consciousness and, although there were times that he was alert and could answer "yes" or "no" rationally, there was no time when he could communicate his wants, needs, and feelings. Additionally, the patient's hospital records indicated that by early August 1999, he had an inability to speak, and a depressed level of consciousness, was confused and lethargic, and opened his eyes to stimuli but could not follow commands. Schulman v. Jacobowitz, 797 N.Y.S.2d 547 -NY (2005)

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A profile writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in American and Who's Who in the World.
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Title Annotation:Medical Law Cases of Note
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Geographic Code:1USA
Date:Jul 1, 2005
Words:549
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