On January 13, 2015, Justice Thomas Feinman, Justice of the Supreme Court, Nassau County, issued an order in Freely v. Donnenfeld denying plaintiff’s motion to amend the complaint to add claims for fraud and breach of fiduciary duty in a medical malpractice action. In doing so, the court ruled that a physician’s concealment of, or failure to disclose his own malpractice did not give rise to an action in fraud, separate from the underlying malpractice suit. The court stated that, “It is only when the alleged fraud occurs separately from and subsequent to the malpractice that a plaintiff is entitled to allege and prove the intentional tort, and then only where the fraud claim gives rise to damages separate and distinct from those flowing from the malpractice.”
The significance of this ruling is two-fold. In the first instance, unlike negligence claims, a fraud claim survives a bankruptcy. Secondly, the statute of limitations for fraud 6 years as opposed to the 2 ½ year statute of limitations governing medical malpractice.
By Dylan C. Braverman, Esq.