In February 2002, plaintiff's decedent underwent a kidney transplant procedure, with a replacement cadaveric kidney supplied by defendant. Four and a half weeks later, a kidney biopsy revealed lesions in the new kidney. After several treatments to the implanted kidney, it was determined that it had been rejected and needed to be removed. The pathology report of the donor kidney showed extensive tumor infiltration, which a consulting physician determined to be evidence of lymphoma. Decedent died on September 19, 2002.

Plaintiff filed suit on September 20, 2004, and defendant moved to dismiss the complaint as barred by the 2½ year statute of limitations for medical malpractice actions (CPLR 214-a). The First Department denied the motion, in Rodriguez v. Saal, which was decided on August 2, 2007.

The court noted that when a complaint does not allege negligence in furnishing medical treatment to a patient, but, rather, the failure of a medical provider in fulfilling a different duty, the claim sounds in negligence. With this defendant, at issue are not questions of medical competence or treatment, but defendant's duties as a collection and distribution center of donated organs. Simply put, the issue to be resolved is whether defendant breached its duty to exercise due care in its organ collection activities.