Ordered that the order is reversed insofar as appealed from, on the law and the facts, with costs, those branches of the motions which were to dismiss the cause of action to recover damages for conscious pain and suffering as time-barred are denied, that branch of the cross motion which was to strike the respondents’ affirmative defense that the cause of action to recover damages for conscious pain and suffering is time-barred is granted, and that cause of action is reinstated insofar as asserted against the respondents.
This action, which was commenced on May 17, 2002, arises from the alleged medical malpractice of the defendants in failing to prevent and properly treat bed sores which led to the death of Daniel Schulman on January 14, 2000. Schulman suffered a stroke on July 27, 1999, while hospitalized at SUNYDownstate Medical Center where he remained in the defendants’ care until November 9, 1999, when he was transferred to a nursing home. The complaint alleged causes of action to recover damages for wrongful death and conscious pain and suffering. In opposition to the motions to dismiss the complaint as time-barred, the plaintiffs acknowledged that the wrongful death cause of action was time-barred by the two-year statute of limitations (see EPTL 5-4.1), but contended that the running of the
The Supreme Court properly directed a hearing on the issue of Schulman’s mental condition during the period of time following his stroke to determine whether his disability came within the ambit of the insanity toll of CPLR 208 (see Rosenfeld v Schlecker, 5 AD3d 461 [2004]; Lynch v Carlozzi, 284 AD2d 865 [2001]; Stackrow v New York Prop. Ins. Underwriter’s Assn., 115 AD2d 883 [1985]). However, we disagree with the Supreme Court’s determination. At the hearing, the plaintiffs presented the testimony of Dr. Aric Hausknecht, board-certified in psychiatry and neurology, who opined that, based upon a review of Schulman’s medical records, Schulman sustained a stroke on July 27, 1999, which affected his speech and memory and, from that time forward until his death, he was “significantly cognitively impaired.” Dr. Hausknecht further testified that during that time, Schulman fluctuated between a stuperous and obtunded level of consciousness and, although there were times that he was alert and could answer “yes” and “no” rationally, there was no time when he could communicate his wants, needs, and feelings. Additionally, Schulman’s hospital records indicated that by early August 1999, he had an inability to speak, had a depressed level of consciousness, was confused and lethargic, and opened his eyes to stimuli but could follow no commands. According to Dr. Hausknecht’s review of the records, Schulman’s condition did not change by the time of his transfer to a nursing home on November 9, 1999. Schulman’s nursing home records indicate that on November 10, 1999, he was aphasic, suffered severe language and cognitive deficits, and had an inconsistent ability to follow directions. On December 1, 1999, the decedent’s responses frequently were unintelligible and accompanied by incomprehensible jargon. According to Dr. Hausknecht’s review of the nursing home records, Schulman’s condition did not change significantly prior to his death on January 14, 2000.
The respondents argue that the plaintiffs failed to prove that Schulman’s disability continued uninterrupted in light of his medical records which indicate that, at times during the relevant period, he was alert and able to intelligently communicate.