Panel Finds More Time for Suing Chiropractors

, New York Law Journal

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The statute of limitations for suing a chiropractor for malpractice is three years, not the shortened two-and-a-half year period that applies to medical, dental and podiatric malpractice, a unanimous Appellate Division, First Department panel ruled Thursday.

Justice John Sweeny wrote the opinion in Perez v. Fitzgerald, 305261/09, joined by Justices David Friedman, Rolando Acosta and Sallie Manzanet-Daniels.

Nancy Perez began seeing a chiropractor, Jane Fitzgerald, for neck and back pain following a car accident in 2005.

In 2008, after seeing a different chiropractor and being referred to an orthopedist, Perez underwent an MRI and was diagnosed with a tumor in her spine, which required surgery. Fitzgerald had also ordered an MRI but did not look at it herself, relying instead on a report from the radiologist that did not mention the tumor. Perez sued Fitzgerald for malpractice in 2008, alleging that Fitzgerald should have diagnosed the tumor.

Fitzgerald moved to dismiss the suit, claiming that it was barred by the two-and-a-half year statute of limitations for medical, dental and podiatric malpractice claims.

Bronx Supreme Court Justice Kenneth Thompson granted the motion, and Perez appealed.

The First Department, in reversing, found that chiropractic treatment was not medical treatment because it "was not an integral part of the process of rendering medical treatment to a patient or substantially related to any medical treatment provided by a physician."

Perez's suit was therefore subject to the three-year statute of limitations for malpractice claims other than medical, dental and podiatric, set out in CPLR 214(6), the panel ruled, and not time-barred.

Perez is represented by Susan Jaffe, an associate at Sullivan Papain Block McGrath & Cannavo, and Stephen Glasser, of counsel to that firm.

Fitzgerald is represented by Jacqueline Mandell, of counsel at Kaufman Borgeest & Ryan.

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