The opinion of the court was delivered by: Whitman Knapp, District Judge.
Plaintiff, Adrienne J. Sweeney, wife of the late James Joseph
Sweeney ("Sweeney") and executrix of his estate, brings this
medical malpractice and wrongful death action against James R.
Malm, Sweeney's former doctor. Dr. Malm moves to dismiss the
complaint as time-barred. For reasons which follow, we grant
On July 3, 1984, Dr. Malm discussed with Sweeney, a patient
at Columbia Presbyterian Medical Center, some of the risks of
triple bypass heart surgery. He did not tell Sweeney that there
was a risk that he might be given a transfusion of blood
tainted with the AIDS/HIV virus.*fn2 Nor did he advise him
that he could reduce or eliminate this risk by obtaining his
own blood prior to undergoing surgery or by obtaining blood
from a friend or family member. On July 6, the surgery was
performed. On July 10, in order to counteract complications
that had developed, Sweeney was given a blood transfusion. He
was thereafter discharged from the hospital. On August 9, 1984,
he returned to Dr. Malm for a followup visit during which it
was determined that Dr. Malm need provide no further
On December 15, 1987, Sweeney died. The death certificate
listed AIDS among the causes of his death.
On October 27, 1989, plaintiff brought this action against
Dr. Malm for failure to inform Sweeney of the hazards of blood
transfusions and of ways to reduce those hazards.
The complaint alleges two claims: (1) failure to obtain
informed consent, a claim which is a species of medical
malpractice, and (2) wrongful death based on the informed
consent claim.*fn3 Accordingly, under New York's statute of
limitations for medical malpractice, the longest limitations
period that could be applicable is two years and six months
from the "last treatment where there is continuous treatment
for the same illness, injury or condition." N.Y.C.P.L.R. §
214-a. See also Hoemke v. New York Blood Center (S.D.N.Y. 1989)
720 F. Supp. 45, 46.
Plaintiff argues that the last treatment occurred on June 16,
1987 when Sweeney met with Dr. Malm and had his blood taken and
that therefore the suit against Dr. Malm was timely instituted.
We cannot agree. It is clear to us that the last treatment in
the course of continuous treatment for Sweeney's heart
condition occurred during the follow-up visit of August 9,
1984. Since Sweeney died and this action was filed more than
two years and six months later, both claims against Dr. Malm
are time-barred. To hold otherwise, in addition to departing
from the common sense meaning of the words of the statute,
would be to discourage any doctors who found themselves in the
position in which Dr. Malm found himself from trying to locate
former patients whom they have reason to fear may have been
infected with AIDS.
We dismiss the complaint against Dr. Malm.