To determine the applicable statute of limitations pursuant to Article Two of
the CPLR, the theories under which movant is seeking relief must be identified.
Paragraphs 2A, 2B, and 2C of the proposed claim seem to assert allegations of
the failure of medical professionals to properly evaluate movant for treatment
in accordance with professional standards of care, and the failure to properly
perform a surgical procedure. These allegations sound in medical malpractice.
(See, CPLR 214-a; Karasek v LaJoie, 92 NY2d 171, 176) A medical
malpractice cause of action is subject to the two and one-half year statute of
limitations of CPLR 214-a.
The allegations in the first paragraph 2D of the proposed claim implies the
improper release of confidential information relating to movant by a secretary
in the Psychiatric Department to another secretary and a psychiatric resident.
Defendant asserts that movant alleges a defamation cause of action. Such a
cause of action would be limited by a one-year statute of limitation. (CPLR 215)
A defamation cause of action has as a required element that the statements made
must be false. (43A NY Jur 2d, Defamation and Privacy, §4) Movant has not
alleged the statements were false, and based upon her other allegations, falsity
is obviously not in issue since what the secretary stated was in fact true.
Rather, it appears to this Court that movant's allegations seek redress for the
breach of confidentiality. A cause of action for breach of confidentiality has
been recognized in this state based upon the fiduciary duty of the physician or
psychologist to the patient, and such a cause of action has been found to be
actionable as a tort. (See, MacDonald v Clinger, 84 AD2d 482; Doe v
Roe, 93 Misc 2d 201) This action sounds in negligence and is subject to the
three-year statute of limitations. (Tighe v Ginsberg, 146 AD2d
It is difficult to identify what cause of action is advanced by the last
paragraph of factual allegations in the proposed claim (the second paragraph
labeled 2D). Movant seems to indicate that she was not properly treated, that
the hospital had some obligation to provide her with counseling services and did
not arrange for another professional to take her case when she had problems with
a treating psychologist. Based upon the facts, it is difficult to determine
whether this is a claim for malpractice or negligence. In any event, the Court
need not make that determination at this juncture. Treatment by a psychologist
has been found to be "not medical" treatment and therefore a cause of action for
the malpractice of a psychologist has been held to a three-year statute of
limitations, the same as an action based in simple negligence. (See,
CPLR 214(6); Karasek v LaJoie, supra at 177.)
Now that the applicable time frames have been determined for each cause of
action, the date of accrual must be identified in order to determine when the
clock began running for the statute of limitations. Movant asserts in the
proposed claim that the date of accrual was November 9, 1998, which would make
her motion to file a late claim timely on all causes of action.
Defendant, in response to the motion, points out that the psychiatric
evaluations movant complains about in paragraph 2A and 2B occurred on December
4, 1992 and January 18, 1994. The surgery for sexual reassignment occurred on
May 24, 1994. Using those dates, this application would be well beyond the
permissible statute of limitations time frame.
Movant, in response to defendant's assertion of untimeliness, provides that she
continued to treat with the SUNY Health Science Center (hereinafter SUNY) for
mental health issues as a result of the surgery until November 9, 1998. Movant
asserts in her response to defendant's affirmation that November 9, 1998 was her
last scheduled appointment at the Department of Psychiatry. There is no
evidence regarding what movant was treated for up to that date, except for
movant's blanket statement that it was related to mental health problems
associated with the sex-change surgery she underwent. Movant also asserts that
she last treated with Dr. Shafiroff for problems caused by the surgery on May 4,
1998. She has thereby proffered the application of the continuous treatment
doctrine. (CPLR 214-a) These dates, if accepted, would clearly make this
Without further information, the Court cannot determine whether the continuous
treatment doctrine tolled the statute of limitations for movant. Whether the
acts of the initial professionals involved in treating movant can be imputed to
the subsequent treatment providers, all employees of the State at SUNY, to
postpone the accrual of the malpractice causes of action until the cessation of
treatment was not addressed factually or legally by the movant, and she has not
submitted sufficient proof to allow the Court to find that the continuous
treatment doctrine applies. (See, McDermott v Torre, 56 NY2d 399;
Kavanaugh v Nussbaum, 71 NY2d 535; Pierre- Louis v Ching-Yuan Hwa,
182 AD2d 55; Watkins v Fromm, 108 AD2d 233; Matter of Turcios v
Nassau County Medical Ctr., 173 Misc 2d 646) However, factual information
presented in movant's supporting affidavits are to be taken as true where the
allegations have not been contradicted by the defendant. (Schweickert v
State of New York, 64 AD2d 1026) Therefore, solely for purposes of this
motion, the Court will accept movant's assertions that her medical treatment
continued until May 4, 1998, and her psychological treatment continued until
November 9, 1998. Accordingly, her motion will be deemed timely for these
causes of action.
Similarly, movant asserts that the release of her confidential information
described in movant's first paragraph 2D occurred in the summer of 1998. Again,
accepting this as true, solely for purposes of this motion, movant's application
to bring a late claim for breach of confidentiality is timely.
Moving to the substantive analysis of the late claim application, to determine
whether an application for permission to file a late claim should be granted,
consideration must be given to the six factors listed in Court of Claims Act
§10(6) and any other relevant factors. The presence or absence of any one
factor is not determinative. (Bay Terrace Cooperative Section IV, Inc., v
New York State Employees' Retirement System, Policemen's and Firemen's
Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d
965.) Instead it is a balancing of all of the factors by the Court which may
warrant the granting of the application to file and serve a late claim.
As an excuse for her failure to timely serve a notice of intention or to file
and serve a claim in accordance with Court of Claims Act §10, movant
alleges she retained an attorney to represent her in bringing this action on
April 27, 1999. Apparently, the attorney she retained had a change of heart,
and neither he, nor any of the other attorneys she consulted with, advised that
she had to file and serve a claim within 90 days after the date of accrual.
This is not a sufficient excuse for failing to timely serve a notice of
intention or for not filing and serving a claim in accordance with Court of
Claims Act §10. (See, Sevillia v State of New York, 91 AD2d
792 [initially retained out-of-state attorney who did not take proper action was
not a valid excuse]; Musto v. State of New York, 156 AD2d 962 [movant's
inability to secure counsel was not a sufficient excuse for delay]; Matter of
E.K. v State of New York, 235 AD2d 540, lv. denied 89 NY2d 815
[ignorance of the law is not a sufficient excuse]).
Turning to whether the State had notice, an opportunity to investigate the
facts underlying the proposed claim, or whether the State would suffer prejudice
if the application was granted, these factors, being interrelated, will be
considered together. Movant does not address these factors at all in her
application, nor does defendant in its opposition. Since movant has the burden
to come forward on these issues, these factors weigh against granting the
application. Nonetheless, utilizing the information available to address these
factors, it appears that the State lacked notice of the alleged wrongdoing and
an opportunity to investigate.
Accepting movant's allegations as true, movant asserts that she complained to
Doctor Shafiroff regarding problems she was having as a result of the surgery;
however, Doctor Shafiroff is the alleged tortfeasor. Notice has not been found
where the only notice is to the alleged tortfeasor and not to someone possessing
supervisory authority to initiate an investigation into the allegations of the
claim. (Philipps v State of New York, 36 AD2d 679; Bommarito v State
of New York, 35 AD2d 458) Although certainly the State is in possession of
records relating to the surgery and movant's treatment and therapy, records
alone are generally insufficient to put the State on notice of a claim.
(See, Matter of Aviles v New York City Health & Hosp. Corp., 172 AD2d
237; Perkins v Health & Hosp. Corp., 167 AD2d 150; Kreuzburg v
Wang, Stony Brook Univ. Hosp. and State of New York, Ct Cl, Presiding J.
Read, filed March 1, 1999, Motion No. M-58460; Rosado v State of New
York, Ct Cl, J. McNamara, filed June 22, 1998, Motion No. M-57211)
The State, however, would not likely be prejudiced by allowing the malpractice
claims to be filed, since movant's treatment should be memorialized by the
As for movant's allegations of a breach of confidentiality, there is no
indication that anyone other than the participants involved in the circulation
of movant's confidential information knew of the alleged breach. Thus the State
would not have had a timely opportunity to investigate. The State also may be
prejudiced by allowing this cause of action, since movant refers to the "former"
secretary, indicating that the key participant may no longer be employed by the
State or otherwise available.
The next factor, whether the claim appears to be meritorious, is referred to as
the most essential factor. Unlike a party who has timely filed a claim, one
seeking permission to file a late claim has the heavier burden of demonstrating
that the proposed claim appears to be meritorious. (See, Nyberg v State of
New York, 154 Misc 2d 199) Generally a proposed claim meets this standard
if it is not patently groundless, frivolous, or legally defective, and upon
consideration of the entire record there is cause to believe that a valid cause
of action exists. (Santana v New York State Thruway Authority, 92 Misc
2d 1, 11.) The Court will address the causes of actions separately.
Movant, in her supporting documents, has failed to set forth sufficient
information to allow the Court to determine whether the proposed malpractice
cause of action is meritorious. Whether the hospital violated the accepted
standards of care in recommending movant begin the sex change process and
whether the surgery was performed properly are allegations which the Court
cannot properly assess without an affidavit from an expert. The letter from
Stanley H. Biber, M.D., practicing as a general surgeon in Trinidad, Colorado,
is not sufficient. The letter does not set forth facts identifying what the
State allegedly did wrong, and causally connecting the alleged wrong to the
injuries. (Schreck v State of New York, 81 AD2d 882; Favicchio v State
of New York, 144 Misc 2d 212.) As a result, movant has failed to show that
her cause of action for malpractice set forth in paragraphs 2A, 2B, and 2C of
the proposed claim appears meritorious.
Movant has alleged breach of confidentiality, as a result of her allegedly
overhearing a former secretary of the Psychiatric Department talking with other
employees, including a psychiatric intern, regarding her sex change operation.
This is not a situation where movant's medical information was released to
someone outside the department where she was receiving treatment; rather, movant
argues that these individuals had no reason to know the facts disseminated. An
action for breach of confidentiality has been recognized in this State, flowing
from the codified common-law privilege for doctor-patient communications.
(MacDonald v Clinger
, 84 AD2d 482) CPLR 4504 governing the protection
of doctor-patient communication provides that a person authorized to practice
medicine, registered professional nursing, licensed practical nursing,
dentistry, podiatry or chiropractic cannot disclose any information acquired in
attending a patient in a professional
Person is defined by the statute
broadly to include not only an individual but also a public corporation, like
the SUNY Health Science Center. (See
, CPLR 4504(a)(1); Educ. Law
While a privacy cause of action cannot be based upon CPLR 4504 or 4507, the
statutes serve to define the duty owed to the patient. The cause of action,
although not based upon the statutes, arises from the implied covenant of trust
and confidence inherent in the relationship between doctor and patient.
(MacDonald v Clinger, supra; Rea v Pardo, 132 AD2d 442,
445; Doe v Community Health Plan-Kaiser Corp., 268 AD2d 183) Since a
public corporation can only act through its agents, servants or employees, the
State can be held liable for the actions of the secretary in releasing
confidential information. (Cf., Doe v Community Health Plan-Kaiser Corp,
supra at 186; CPLR 4507, 4503(a); but cf., Matter of V v State of New
York, 150 Misc2d 156, 159) However, movant has not set forth sufficient
facts in order for this Court to find that there is reason to believe a valid
cause of action exists. Movant has not provided with whom she was treating at
the time. Was this the secretary of a particular doctor? Did movant overhear
this discussion at a restaurant, in a mall, or was it within the confines of the
Psychiatric Department where movant was receiving care? By 1998, movant had
been evaluated and/or treated by a number of staff members from the Psychiatric
Department at SUNY. In order to effectively run a department, many people
become involved with a patient's file. Certainly movant is entitled to have the
details of her care and treatment kept confidential, yet there is no indication
that the exchange of information was not necessary for movant's care.
Finally, addressing the last paragraph of movant's proposed claim (the second
paragraph 2D), movant states that the last psychologist who treated movant
refused her "service on 2 separate occasions" and threw her out of the office.
The hospital refused to intervene or assign a new therapist. It is very
difficult to determine under what theory movant is asserting she is entitled to
relief. Although at face value these allegations appear to be mere negligence,
(i.e., negligent infliction of emotional distress or ordinary negligence) it is
possible that the conduct in question related to movant's treatment and violated
a professional standard of care. Movant has failed to set forth sufficient
facts for the Court to determine that there is reason to believe a cause of
action exists for which there is legal redress under any theory, as opposed to
merely discourteous conduct.
The final factor to be considered is whether movant has any other available
remedy. Movant does not address this issue. This factor must weigh against
granting movant's application.
Upon balancing all of the factors in the Court of Claims Act §10(6), this
Court DENIES movant's application for permission to file and serve the proposed
claim. The Chief Clerk is hereby directed to seal the record regarding this
motion to protect the privacy of the movant.