Decided December 23, 2004.
LAW OFFICES OF ANTHONY S. SENFT, JR., P.C., Anthony S. Senft, Jr., Esq., East Islip, New York, Attorneys for Plaintiff.
FAGER AMSLER, L.L.P., John P. Powers, Esq., Syracuse, New York, Attorneys for Cortland Memorial Hospital.
Plaintiff, now 34 years of age, seeks to recover for what he now characterizes as the "theft" of his right kidney, during an appendectomy performed by defendants in 1978, when he was seven years old. Defendant Cortland Memorial Hospital moves to dismiss the action on timeliness grounds. Plaintiff opposes the motion, arguing that defendants' intentional concealment of their wrongdoing creates an equitable estoppel, that bars them from asserting the Statute of Limitations as a defense.
There is no dispute that, but for proof of fraud or the applicability of an estoppel theory, the present action would be untimely. Whether the alleged wrongdoing is characterized as negligence, medical malpractice or failure to obtain informed consent, the longest statute of limitations that could apply would be three years ( see, CPLR 214, 214-a), and that period would have begun to run when plaintiff attained the age of 18 on June 16, 1988 (CPLR 208). Thus, the claims would have been time-barred, at the latest, on June 16, 1991, almost 12 years before this action was brought in January 2003.
That being so, the burden is on the plaintiff to establish a factual basis for his claim of equitable estoppel, or to at least raise a factual question which, if resolved in his favor, would support a finding of conduct warranting application of the doctrine ( see, Valenti v. Trunfio, 118 AD2d 480, 483). This he has not done. Plaintiff's estoppel theory is based on his contention that his right kidney was "purposefully removed in such a way as to leave no external evidence of the theft" by the surgeon who performed his appendectomy, and that because of "the extreme difficulty the doctor must have had removing a kidney through an appendectomy incision, each and every one of the hospital staff in the operating room that day must have been aware of and an accomplice in this scheme to steal [plaintiff's] organ" (Affirmation of Anthony S. Senft, Jr., Esq., dated February 7, 2004, ¶¶ 9, 27). Plaintiff has, however, tendered no probative evidence that could provide a legally sufficient basis for a factual finding that his kidney was secretly removed during his childhood appendectomy. The only medical "proof" he has submitted is in the form of unsworn "Result Reports" of two recent radiologic procedures, a pyelogram and a CT scan, in which the interpreting doctors state their findings. The physician interpreting the pyelogram reports that he "strongly suspects" a prior right nephrectomy (kidney removal), due to the absence of that kidney and the presence of surgical clips in the vicinity (Senft Affirmation, Exhibit 3, Report of Pyelogram dated November 6, 2001). He stops far short of concluding that such a surgery did take place, however, as is evidenced by his subsequent reference to that very possibility: "If there is no prior history of right nephrectomy, a CT study may be performed . . ." ( id.). This notation certainly does not rise to the level of an expert opinion, arrived at "with a reasonable degree of medical certainty," that plaintiff's kidney was, in fact, surgically removed (as opposed to having been absent from birth) ( see, Chase v. Cayuga Medical Ctr. at Ithaca, Inc., 2 AD3d 990, 990).
According to one of defendants' experts, "roughly 4.5% of the population" is born with only one kidney (Affirmation of Alan B. Foster, M.D., dated September 16, 2004, ¶ 5).
Similarly insufficient is the report of the CT scan, which also notes the presence of surgical clips, "consistent with prior nephrectomy," which " may have been performed at the time of a previous appendectomy" (Senft Affirmation, Exhibit 3, Report of CT Scan dated December 6, 2001 [emphasis added]). Such an equivocal supposition could not, without more, provide the basis for a factual finding that plaintiff's right kidney was removed, clandestinely, by defendants, through a small abdominal incision, during the course of a childhood appendectomy. To reach such a conclusion, on the basis of the evidence presently before the court, would require an impermissible degree of speculation and surmise ( see, Horth v. Mansur, 243 AD2d 1041, 1043; cf., Chase, at 990-991), particularly in view of the alternate explanation proffered by defendants' experts for the location of the surgical clips and the absence of plaintiff's kidney ( see, Affirmation of Alan B. Foster, M.D., dated September 16, 2004), and the unrefuted proof that the scenario plaintiff suggests would be medically impossible (Affirmation of Ovid O. Neulander, M.D., dated September 16, 2004) ( see, Hooke v. Speedy Auto Center, 4 AD3d 110, 112; Peterson v. Barry, Bette Led Duke, Inc., 171 Misc 2d 346, 352 [Sup. Ct., Monroe Co., 1996]).
In sum, there is simply no view of the evidence tendered that could lead a rational jury to conclude that plaintiff has met his burden of demonstrating grounds for an equitable estoppel. While recognizing that the purpose of summary judgment is merely "issue finding," the court is compelled, on this record, to conclude that plaintiff has not raised more than a "shadowy semblance of an issue," insufficient to preclude the relief sought by defendants ( see, Hooke, at 112; Sullivan v. Welsh, 132 AD2d 945, 946). The motion must therefore be, and hereby is, granted, and the complaint is dismissed.
This decision shall constitute the order of the court.