New York State Court of Claims

New York State Court of Claims

SAMUEL v. THE STATE OF NEW YORK, #2003-016-056, Claim No. None, Motion No. M-66433


Synopsis


Late claim motion was granted.

Case Information

UID:
2003-016-056
Claimant(s):
JAMES SAMUEL and ELIZABETH SAMUEL The caption has been amended to reflect that Elizabeth Samuel seeks permission to file a late claim which is derivative of her husband James Samuel's claim; although she is listed in the caption of the proposed claims submitted on this motion, she is not listed in the caption on the notice of motion or affirmations or affidavits submitted on such motion. In addition, as Elizabeth Samuel's claim is derivative in nature, references herein to Samuel or claimant will be to James Samuel unless the context indicates otherwise.
Claimant short name:
SAMUEL
Footnote (claimant name) :
The caption has been amended to reflect that Elizabeth Samuel seeks permission to file a late claim which is derivative of her husband James Samuel's claim; although she is listed in the caption of the proposed claims submitted on this motion, she is not listed in the caption on the notice of motion or affirmations or affidavits submitted on such motion. In addition, as Elizabeth Samuel's claim is derivative in nature, references herein to Samuel or claimant will be to James Samuel unless the context indicates otherwise.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-66433
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Kadanoff & Kadanoff, P.C.By: Philip G. Kadanoff, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Katharine S. Brooks, Esq., AAG
Third-party defendant's attorney:

Signature date:
August 20, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is the motion of James and Elizabeth Samuel for an order permitting them to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In the proposed claim, it is alleged that when James Samuel underwent a medical procedure at the State University of New York Health Science Center at Brooklyn ("Downstate"), he was subjected to excessive doses of radiation which resulted in a "radiation burn" on his back. Samuel describes the facts underlying his claim as follows. On October 27, 2000, he underwent procedures at Downstate referred to as "Single Angioplasty without Thrombolysis; Left Heart Cardiac Catheterization; Left Heart Angiocardiogram; Coronary Arteriograms and Insertion of Coronary Artery Stent." Such procedures were performed by attending physician Ernest Afflu, M.D. with the assistance of two other Downstate physicians. After the procedure, Samuel experienced tenderness on his back and when he returned home after discharge, his family noticed he had a brown spot on his back. See pp. 1-2 of the February 20, 2003 affidavit of James Samuel, annexed to claimants' moving papers as exhibit C (the "Samuel Aff.").

Claimant returned to see Dr. Afflu on November 4, 2000 and December 12, 2000 and told Dr. Afflu during these visits of the continuing pain in his back, to which Dr. Afflu "said it was nothing." On December 16, 2000, Samuel again returned to Dr. Afflu, complaining of increased pain and discomfort in his back at which time Dr. Afflu told him it was a "radiation burn" from "being on the table too long" and further said "not to worry and that [the] ‘rash' would resolve itself." Claimant was told to return in three months and was also told he did not need any further treatment at that time. See p. 2 of the Samuel Aff.

Samuel returned to Dr. Afflu on January 27, 2001, April 7, 2001 and October 13, 2001 with the same back complaints. He asserts that Dr. Afflu again "told [him] not to worry." He then returned to Dr. Afflu on January 26, 2002, describing his back as "worse." According to claimant, at that point, Dr. Afflu told him to see a dermatologist; it is unclear whether claimant went. On February 1, 2002, claimant went back to Downstate for a second catheterization procedure which was performed by Dr. Afflu and another doctor. Claimant states that he was in pain during the procedure and recalls that a pillow was placed under his shoulder and another under his lower back to elevate him so that his burn would not touch the table during the procedure. See pp. 2-3 of the Samuel Aff.

After recovering from the second procedure, claimant saw his primary care physician, Dr. Abraham Demoz, who prescribed antibiotics for what had become an infection in claimant's back. On June 28, 2002, claimant went to the Downstate emergency room with "horrific pain" in his back and was told to see a "burn specialist." Since that time, he has undergone a biopsy of his back and describes his condition as a "back lesion [that] was infected, ulcerated, and necrotic [for which] I have undergone regular debridement procedures to . . get rid of the necrotic tissue. Presently, I have been advised that I require a skin grafting procedure or other operative procedures to try to close the deep hole in my back." See pp. 3-4 of the Samuel Aff.
* * *
Claimants have submitted two affirmations of Ronald E. Vlietstra, M.D., who states that he reviewed Samuel's medical records as well as photographs taken of Samuel's back in September of 2001 and January of 2003. Dr. Vlietstra notes that during the initial procedures on his back, Samuel received "x-irradiation" and that approximately 6 weeks later, Dr. Afflu diagnosed him with a radiation burn. Thereafter, the burn turned into a "substantial painful lesion, a chronic ulcer, requiring debridement, a lesion which has not healed to date. Mr. Samuel will likely require skin grafting to close the hole on his back and other medical treatment and monitoring for complications associated with radiation burn injuries . . ." See p. 2 of the February 11, 2003 affirmation of Ronald E. Vlietstra, M.D., attached to claimants' moving papers as exhibit B (the "Vlietstra Aff.").

Dr. Vlietstra states that it is his opinion that there was a deviation from accepted medical practice in exposing claimant to "an excessive dosage of radiation, failing to monitor the amount of radiation utilized, failing to utilize proper techniques to protect Mr. Samuel from excessive radiation and other deviations, thereby causing severe and permanent injuries to Mr. Samuel." See p. 3 of the Vlietstra Aff.

Dr. Vlietstra also states that "[d]eep radiation burns on the back, like the one suffered by claimant James Samuel, are caused by a major overdose of X-ray to an area of skin. Such major overdoses are rare, but when, as here, they occur, they can only be attributed to one of three causes, each of which was a deviation in proper technique in the year 2000: 1) a defect in the X-ray system; 2) markedly prolonged standard dose rate fluoroscopy; or 3) an inappropriate over-use of high-dose rate fluoroscopy. The available records do not permit a conclusion as to which of these three is the etiology of Mr. Samuel's severe injury. However, Mr. Samuel's burn could not have been caused without one of these deviations occurring." See p. 1 of the April 25, 2003 affirmation of Ronald E. Vlietstra, M.D., attached to claimants' reply papers as exhibit A.
* * *
In order to decide this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first, second and third factors – whether the defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, however, a distinction should be drawn among these factors. With regard to notice, while defendant may have known of Samuel's burn, it is undisputed that prior to the making of this motion, claimants had not made defendant aware of their intention to bring a claim. The issue is thus whether defendant's possession of medical records, without more, is sufficient to impute notice for the purpose of the Act. If so, this would mean that in any medical malpractice case, the notice factor would automatically be satisfied. I cannot find that notice has been satisfied in this case. See O'Shea v State of New York, Ct Cl filed 11/5/99, Marin, J. (unreported, motion no. M-59853), affd 278 AD2d 237, 717 NYS2d 293 (2d Dept 2000). Such medical records do, however, offer an opportunity to investigate this claim.[2] Moreover, aside from a conclusory assertion that it will be prejudiced by the granting of this motion, defendant has pointed out no identifiable prejudice.

As to an alternate remedy, it would appear that claimant could file suit against the attending physicians who treated him, e.g., Dr. Afflu, in Supreme Court, although the viability of such cause of action is unknown, particularly in view of the lack of knowledge as to the particular etiology of Samuel's burn. As to excuse, claimants essentially rely on what they characterize as Dr. Afflu's "downplaying" of the seriousness of Samuel's condition. They have cited no authority for the proposition that this is a valid excuse for the purposes of the Act and accordingly, this factor has not been met.

The final factor to be considered is merit. As set forth above, Dr. Vlietstra has stated that radiation burns such as the one suffered by claimant James Samuel can only be attributed to causes which are deviations from proper techniques. I find that claimants meet the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for the appearance of merit: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

For the foregoing reasons, having reviewed the parties' submissions[3], IT IS ORDERED that motion no. M-66433 be granted. IT IS FURTHER ORDERED that within forty-five (45) days of the filing of this Decision and Order, claimants shall serve and file the claim annexed to their reply papers[4] and otherwise comply with §§11 and 11-a of the Court of Claims Act.


August 20, 2003
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]Claimants point out that an FDA "Advisory" preceding claimant's surgery, which is entitled "Avoidance of Serious X-Ray-Induced Skin Injuries to Patients . . ." recommends the maintenance of certain information regarding the amount of absorbed radiation dosage. See exhibit E to claimants' moving papers. Claimants also point to the American College of Radiology's standards requiring the periodic monitoring of equipment and recording of data. See p. 13 of claimants' moving papers. It is unclear whether such monitoring or data collection was performed in this case.
  3. [3]The following were reviewed: claimant's notice of motion with affidavit in support and exhibits A-J; defendant's affirmation in opposition; and claimant's reply affidavit with exhibits A-C.
  4. [4]Claimants submitted proposed claims with both their moving papers and their reply papers. In the latter proposed claim, a cause of action for lack of informed consent was withdrawn.