New York State Court of Claims

New York State Court of Claims

DOE v. STATE OF NEW YORK, #2000-018-052, Claim No. NONE, Motion No. M-61652


The Court denied movant's application for permission to file and serve a late claim after balancing all the factors in Court of Claims Act §10(6).

Case Information

JANE DOE The Court has sua sponte amended the caption to remove the name of the movant in order to protect her privacy.
Claimant short name:
Footnote (claimant name) :
The Court has sua sponte amended the caption to remove the name of the movant in order to protect her privacy.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: PATRICIA M. BORDONARO, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 11, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Movant filed this motion on May 1, 2000, seeking permission to file a late claim. The

Defendant opposes the motion. The Court has considered the following documents in

determining movant's application:

Notice of Motion..............................................................................................1

Affidavit of Jane Doe in support with all exhibits attached thereto.................2

Affirmation of Patricia M. Bordonaro, Assistant Attorney General in

opposition with all exhibits attached thereto........................................3

Affidavit of Jane Doe in Response to Affirmation in Opposition, with

all exhibits attached thereto..................................................................4
A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the court, to file a claim which complies with Section 11 of the Court of Claims Act, at any time before an action asserting a like claim against a citizen of the State would be barred under the provisions of Article Two of the CPLR. (Court of Claims Act §10(6).) Movant never served a notice of intention and no claim was ever served or filed in this matter. The proposed claim asserts facts indicating several causes of action. As a result, the Court, before reaching the issue of merit, will address the allegations to ascertain whether this motion has been timely brought.

The proposed claim alleges as follows:
"A. The department of Psychiatry at University Hospital violated their own policies and procedures when, using the Harry Benjamin Standards of Care, they recommended I begin the sex change process even though I did not meet the primary criteria.

B. A second evaluation found me to be a poor candidate for psychotherapy stating that my poor tolerance to feelings could cause me psychosis or regression. Despite this evaluation, I was still put through the sex process approximately 4 months later.

C. The hospital created a vaginal cavity of approximately 3.5 in depth. The hospital also created a patulent vagina and a stenotic urethral orifice. I have pain during intercourse and urinary incontinence.

D. I overheard former secretary at the Dept. of Psychiatry, Sandy Sutton, tell another secretary and a psychiatric resident who was not involved with my case that I had had a sex change operation and used to be a man.

D. The last psychologist who treated me at University Hospital refused me service on 2 separate occasions. The psychologist threw me out of her office on the last time we met. The hospital administration refused to intervene in this matter and assign me a different therapist as I had requested." (Proposed Claim paragraph 2)
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 268).

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 application timely.

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 various records.

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 capacity.[1] 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 §352)

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.

October 11, 2000
Syracuse, New York

Judge of the Court of Claims

[1]CPLR 4507 governs the protection of psychologist-patient communications and extends the protection to the psychologist's employees or other persons to prohibit the disclosure of confidential communications. (CPLR 4507 and 4503(2).