Chiropractic Malpractice Must Be Commenced Within 3 Years, According To Appellate Division.


In a case decided on February 6, 2014, Perez v. Fitzgerald, the Appellate Division, First Department held that the statute of limitations period for chiropractic malpractice is three years rather than the two and one-half years that is applicable to medical malpractice.

The plaintiff sought out the services of the defendant chiropractor after an automobile accident in 2005.  She was complaining of neck pain that radiated down to her arms.  An MRI revealed a number of herniated or bulging discs, but not a tumor.  The chiropractor treated the plaintiff until April of 2007.  The plaintiff went to see another chiropractor who recommended that she see an orthopedist.  After reviewing a second MRI in 2008, the orthopedic surgeon advised the plaintiff that she had a tumor in her spine.  She went to see a neurosurgeon and then had a surgery to remove the tumor.

The plaintiff brought an action against the first chiropractor in June 2009 for chiropractic malpractice.  The defendant moved to dismiss the complaint as time-barred since it was brought after the two and one-half year statute of limitations period for medical malpractice.  The first motion to dismiss made during the trial was not granted.  The jury found that the defendant departed from the accepted chiropractic practice when she failed to refer the plaintiff for a second MRI.  However, the trial granted the second motion to dismiss the case as time-barred.

On appeal, the First Department considered the whether the plaintiffs’ claim against the chiropractor was time-barred under the two and one-half years statute of limitations.  The court examined two CPLR provisions, § 214-a, which provides that “[a]n action for medical, dental or podiatric malpractice must be commenced within two years and six months,” and § 214(6), which provides that the statute of limitations for “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice” is three years.  The plaintiff commenced litigation after the two and one-half years had ended but before the end of the three years statute of limitations.

The court analyzed § 214-a and found that it applied to a malpractice cases where a medical professional is engaged in conduct “that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician.”  It was amended by the legislature to add dental and podiatric malpractice.  In determining whether § 214-a applied to chiropractic malpractice the court found that the Second Department had concluded that chiropractic malpractice was not included within medical malpractice.

Additionally, the defendant’s chiropractic services were not performed at a physician’s direction.  Therefore, these services would not be considered medical treatment but was solely chiropractic treatment.  Simply because the chiropractic treatment provided by the defendant is within the broad statutory definition of the practice of medicine under Education Law § 6521 does not mean it constitutes medical treatment under § 214-a.

Therefore since the defendants treatment was “separate from any treatment provided by a licensed physician and was not performed at a physician’s request” the defendant does not have the benefit of the shortened statute of limitations period and is subject to the three year statute of limitations.

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