ALBANY, N.Y. (Legal Newsline) - A lawsuit on behalf of the daughter of a man who committed suicide soon after being released from a New York hospital can proceed even though the plaintiff failed to comply with state law regulating medical malpractice suits, a New York appellate court has ruled.
Citing a string of prior rulings, the Appellate Division, First Judicial Department found that dismissal is too harsh a punishment for missing the deadline for submitting a report showing a physician believes a malpractice lawsuit has merit. State law 3012-a, written to reduce frivolous lawsuits, requires lawyers to submit a certificate including the doctor’s opinion within 90 days or request an extension.
Ayalha Carmel Fortune sued on behalf of the daughter of a man with a history of mental illness who killed himself in August 2015. Police had talked the man down from the ledge of his apartment building the day before and brought him to Lincoln Medical and Health Center. The hospital released him about 23 hours later and he committed suicide the following day.
Two years after Fortune filed suit, New York City sought to dismiss the case, citing Fortune’s failure to submit a medical report within the deadline of 3012-a. That failure was equivalent to a pleading defect such as failure to state a cause of action, the city argued, punishable by dismissal.
The trial court refused to dismiss the case, and Justice Tanya Kennedy agreed. Noncompliance with the pleading statute isn’t as serious as failure to state a claim, she reasoned, since the purpose of the rules is to put defendants on notice as to what they are being sued over. Failure to submit a medical affidavit in time doesn’t obligate the defendant to do anything, the court said.
Violating 3012-a can still result in sanctions, however, the court said. Defendants can ask the court to order the plaintiff to supply a medical affidavit, and dismiss the case if they fail to comply.