New York State Court of Claims

New York State Court of Claims

PARKS v. STATE OF NEW YORK, #2003-018-250, Claim No. NONE, Motion No. M-66849


Upon balancing all of the factors in the Court of Claims Act §10(6), this Court DENIES the motion without prejudice to movant submitting a new application with support for a medical malpractice cause of action and a properly verified proposed claim.

Case Information

Claimant short name:
Footnote (claimant name) :

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: EDWARD F. McARDLE, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 4, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings a motion for permission to file a late claim pursuant to Court of Claims

Act § 10(6). Defendant opposes the relief.

The proposed claim asserts that on March 18, 2002, movant was taken to the Emergency Department at the State University of New York Health Science Center (hereinafter University Hospital) by ambulance after a motor vehicle accident, and he was treated and evaluated by an attending physician. After various tests were performed it is alleged that movant was going to be discharged until he suffered a "syncopal episode" in which he fell from the bed, struck his head and suffered injuries. The claim seeks damages as a result of the defendant's "negligent training and hiring, negligent custody and care, negligent care, treatment and diagnosis, violation of statutory duties, of both State and Federal law, and vicarious liability for acts or omissions of Defendant's agents, servants and/or employees" (proposed claim ¶7, reply affirmation, Exhibit A).

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 § 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]). The motion is timely (Court of Claims Act §10(6); CPLR 214-a, 214[5]). However, the claim does not comply with the requirements of Court of Claims Act § 11(b) in that it is not properly verified; a jurisdictional defect (See, Lepkowski v State of New York, 302 AD2d 765, 766; Graham v Goord, 301 AD2d 882; Martin v State of New York, 185 Misc 2d 799).

The Court will still address 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; instead it is a balancing of all of the factors (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).

Movant provides a few excuses for the delay in failing to timely serve a notice of intention or to file and serve a claim in accordance with Court of Claims Act § 10. Movant changed attorneys; his current attorneys were retained on May 31, 2002. No one was aware at that time that University Hospital was owned and operated by the State of New York. Then there was some difficulty in obtaining the medical records from the hospital. It was not until the medical records were reviewed that it was discovered that University Hospital is owned and operated by the State of New York. These are not sufficient excuses (See, Musto v State of New York, 156 AD2d 962 [inability to secure counsel unacceptable excuse]; Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854 [mistake as to proper entity to sue, not a reasonable 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 alleges that the State had notice of the essential facts relating to movant's hospitalization and treatment for injuries related to his fall, had an opportunity to investigate and will not be prejudiced by this late claim because the medical records are replete with references to the incident. Although merely possessing the medical records does not normally put the State on notice of the facts underlying a potential claim, here the specific facts lend themselves to "raising a red flag" so to speak. Having a patient fall out of bed while under the hospital's care in the Emergency Department would seem to be the type of incident that would generate some reporting requirement and notification to someone in authority (See, Kreuzburg v State of New York, Ct Cl, unpublished decision of J. Read, filed March 1, 1999, Claim No. None, Motion No. M-58460; Stephens & Banks v State of New York, Ct Cl, unpublished decision of J. Lebous, filed March 12, 1999, Claim No. None, Motion No. M-58476; Colon v State of New York, Ct Cl, unpublished decision of J. Bell, filed July 28, 1999, Claim No. None, Motion No. M-59825; Fana v State of New York, Ct Cl, unpublished decision of J. Benza, filed March 19, 1997, Claim No. None, Motion No. M-54507). Moreover, it seems that under these factual circumstances some investigation would have been done at that time. Even if the opportunity to investigate was not utilized, there are certainly medical records from movant's hospitalization which have repeated references to the incident and reference potential witnesses. Although a significant period of time has lapsed between the date of accrual and the filing of this application, the State should not suffer substantial prejudice since the medical records provide factual information regarding the incident and individuals involved allowing the State to now investigate the circumstances surrounding movant's fall. The Court finds that these factors weigh in favor of movant's application.

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 (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11). Movant's position is that his claim sounds in ordinary negligence because no specialized knowledge is necessary to know that a hospitalized patient should not be allowed to fall out of bed. However, a claim asserting negligence as a result of a patient falling out of bed is not always ordinary negligence; it can be a question of medical malpractice. "In that medical malpractice is simply a form of negligence, no rigid analytical line separates the two" (Scott v Uljanov, 74 NY2d 673, 674). A negligent act or omission "that constitutes medical treatment or bears a substantial relation to the rendition of medical treatment by a licensed physician constitutes malpractice" (Bleiler v Bodnar, 65 NY2d 65, 72). The distinction is based upon looking carefully at exactly what movant asserts defendant did wrong.

Where the theory of liability involves a determination of whether defendant's conduct complied with some professional standard, an expert affidavit may be necessary in order for the Court to determine a proposed claim has potential merit. In Scott v Uljanov, 74 NY2d 673, 674, a 46 year old who was being treated in an emergency room after consuming Valium and alcohol with a .29 blood alcohol level, climbed to the end of the bed in which he was placed, fell out and was injured. The rails on the bed were up at the time. The Court of Appeals found that the plaintiff's allegations involved the rendition of medical treatment by "challeng[ing] the hospital's assessment of the supervisory and treatment needs of its highly intoxicated patient during his initial emergency room care" (Scott v Uljanov, 74 NY2d at 675). Where the allegations in the pleading assert defendant's negligent conduct arose in the context of medical diagnosis and treatment, such as the failure to properly assess the patient's condition for an appropriate level of supervision and assistance, the cause of action was found to sound in medical malpractice (See, Smee v Sisters of Charity Hosp. of Buffalo, 210 AD2d 966; Fox v White Plains Med. Center, 125 AD2d 538; Stanley v Lebetkin, 123 AD2d 854; Mossman v Albany Med. Center Hosp., 34 AD2d 263; Gold v Steinmetz, 186 Misc 2d 245). An ordinary negligence theory is implicated when the basis for the claim is the failure to exercise ordinary care to prevent harm to the patient, separate from the patient's diagnosis, care and treatment, or there is an allegation that there was a failure to carry out a physician's instructions (See, Reardon v Presbyterian Hosp. in the City of New York, 292 AD2d 235; Edson v Community Gen. Hosp. of Greater Syracuse, 289 AD2d 973; Rogers v Schuyler, 158 AD2d 318 ; Papa v Brunswick Gen. Hosp., 132 AD2d 601). The portion of the claim seeking damages for defendant's negligent training and hiring is traditionally ordinary negligence (Bleiler v Bodnar, 65 NY2d at 72; Van Slyke v Columbia Mem. Hosp., 118 Misc 2d 203, 204-205). In this case movant raises both ordinary negligence and medical malpractice allegations.

Whether the defendant had any reason to know that movant was at risk of suffering a "syncopal episode" or whether, based upon movant's complaints of nausea and being light-headed, it was negligent to leave movant sitting with the bed in an upright position are questions which require specialized medical knowledge to answer. The underlying basis for movant's claim is the defendant's failure to properly evaluate his symptoms and recognize his risk for losing consciousness thereby warranting more supervision (see, affidavit of Paul Parks ¶ 5 & 11, motion papers, Exhibit C). The Court is without the knowledge to determine whether this portion of the claim sets forth facts for a potentially valid claim. Movant, in an effort to correct any deficiencies in his papers, submits with the Reply Affirmation of Attorney David Rook, an attorney's certificate of merit in accordance with CPLR 3012-a. Unfortunately this is not sufficient to allow the Court to evaluate the potential validity of the proposed claim. What is needed is an affidavit from a physician with the requisite expertise setting forth the specific facts which evidence a deviation from the standard of care, causally linked to the injuries suffered [1] (see, Schreck v State of New York, 81 AD2d 882; Favicchio v State of New York, 144 Misc 2d 212; Colson v State of New York, 115 Misc 2d 402). This factor weighs against granting movant's application for the medical malpractice allegations.

The final factor to be considered is whether movant has any other available remedy. Movant's counsel asserts that there is no other remedy readily viable. Defendant points out movant could bring suit against the driver of the vehicle that caused the car accident. A lawsuit against the driver of the vehicle that caused movant's accident is a potentially viable remedy.

Upon balancing all of the factors in the Court of Claims Act §10(6), this Court DENIES the motion without prejudice to movant submitting a new application with support for a medical malpractice cause of action and a properly verified proposed claim.

September 4, 2003
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

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

Affirmation of Cynthia S. LaFave, Esquire, in support with exhibits attached.....2

Answering Affirmation of Edward F. McArdle, Esquire, Assistant

Attorney General, in opposition.................................................................3

Reply Affirmation of David E. Rook, Esquire, with exhibits attached..................4

[1]The evaluation letters from movant's current treating physicians attribute his continuing injuries to the motor vehicle accident (see, movant's motion, Exhibits G and H).