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February 24, 2023

Late Claims Against Physician Assistants Do Not Relate Back to Timely Action Against Doctors

Plaintiffs in New York State are generally free to amend their pleadings, including the addition of new parties, during the pendency of the statute of limitations. Once the statute has run, however, plaintiffs may not add additional parties unless they can establish that the causes of action against those new parties “relate back” to the pending claims.

The “relation back” doctrine gives courts freedom to exercise judicial discretion to identify cases that justify a relaxation of what is normally a strict bar, allowing plaintiffs to correct pleading errors, including the failure to name parties within the statute of limitations. In those cases, plaintiffs bear the burden of establishing “(i) the causes of action arose out of the same conduct, transaction, or occurrence; (ii) the new party is united in interest with one or more of the original defendants . . . ; and (iii) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been commenced against him or her as well.” 

In Sanders v. Guida, the plaintiff sued individual partner-doctors of a family medical practice, alleging medical malpractice and wrongful death based on the doctors’ failure to properly diagnose and treat the plaintiff’s decedent’s prostate cancer. The plaintiff did not sue the medical practice. Two years later, after the statute of limitations had run, the plaintiff moved for leave to amend the complaint adding two additional physician assistants (PAs) that were formerly employed by the practice and purportedly provided care to the decedent. Both PAs moved to dismiss the amended complaint as time-barred. The Supreme Court of the State of New York denied both motions, and the PAs appealed.

The Second Department reversed the lower court’s denial of the PAs’ motions, expounding upon what it means for parties be “united in interest” and whether the PAs could reasonably conclude that they would not be sued in the future.  

The court reasoned that, in a negligence or malpractice action, interests are united only where one party may be held vicariously liable for the acts of another. Here, the plaintiff failed to establish vicarious liability because the PAs were employed by the practice and not by the individual doctors. Moreover, the plaintiff failed to establish that the PAs were directly supervised or controlled by the individual doctors. The plaintiff also failed to establish that the PAs should have known they would be sued, as their treatment and employment ended several years prior to the action being commenced.  

Significantly here, despite the small, family-practice nature of the business, the court refused to extend vicarious liability without the practice named as a direct defendant. This is an interesting analysis for defense counsel and carriers alike. 

If you have any questions regarding the content of this alert, please contact Daniel Martucci, associate, at; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at; or another member of the firm’s Torts & Products Liability Defense Practice Area.

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