Decedent Shane Maxwell, an inmate, died on May 20, 2001 at Arnot-Ogden Medical
Center (hereinafter "Arnot") after being transferred there three days earlier,
on May 17, 2001, from Elmira Correctional Facility (hereinafter "Elmira"). It
appears from this record that for some time prior to his death Decedent had
refused to eat. According to a case summary prepared by Cheng Yin, M.D.,
identified as a Clinical Physician II at Elmira, Decedent was transferred to
Elmira's infirmary on February 26, 2001 for refusing to eat with, among other
things, severe dehydration and undetectable blood pressure. (Claimant's Reply
Affirmation, Exhibit C). On March 5, 2001, Decedent was discharged to Elmira's
Mental Health Department. Dr. Yin's summary notes that Claimant subsequently
refused medical call outs on April 4, 2001 and May 10, 2001. On May 16, 2001,
Decedent was readmitted to Elmira's infirmary with severe dehydration. The
following day, May 17, 2001, Decedent was transferred to Arnot where he died
three days later. Included with Claimant's papers is the State's form "Report
of Inmate Death to State Commission of Correction" in which Dr. Yin is noted as
the reporting official and the cause of death is listed as "SUDDEN DEATH FROM
ASPIRATION??" and the circumstances of death are listed as "[s]evere dehydration
and anuria secondary to diabetes was transfered [sic] to AOMC on 5/17/01.
He had a cardiac arrest after vomitting [sic] and pronounced dead on
5/20/01 at 6:40 AM." (Reply Affirmation, Exhibit C). There are no other
medical records submitted with this motion detailing the medical treatment and
supervision provided to Decedent throughout his four months at Elmira.
The proposed Amended Claim describes the State's liability as follows: "[t]he
negligent supervision involved a failure to monitor the intestate's food and
pharmaceutical intake, resulting in dehydration, hyperglycemia, anemia,
unresponsiveness and renal difficulties. The negligent medical care involved
the failure to properly treat the intestate's condition." (Amended Claim,
¶ 2). In this Court's view, these allegations may be construed to include
both negligence and medical malpractice theories of liability in support of the
wrongful death and conscious pain and suffering causes of action. Claimant
seeks 10 (6) relief because she has missed the statutory time periods within
which to file and serve both a conscious pain and suffering claim, as well as a
wrongful death claim.
As a threshold consideration this Court must determine whether it has the
jurisdiction to review and determine a motion seeking permission to file a late
claim which must be filed within the statute of limitations period attributable
to the underlying cause(s) of action. (CCA 10 ). Claimant has made the
mistake of merging the discussion of conscious pain and suffering into the
wrongful death claim. However, wrongful death claims and conscious pain and
suffering claims carry different underlying statutes of limitations and, as
such, each proposed cause of action must be addressed separately.
A wrongful death cause of action must be commenced within two years from the
date of death. (CCA 10 ; EPTL 5-4.1). Mr. Maxwell died on May 20, 2001.
Accordingly, since this motion was filed on November 25, 2002, it is timely with
respect to the proposed wrongful death cause of action. A conscious pain and
suffering cause of action based upon medical malpractice must be commenced
within two-and-one-half years after the action accrued, whereas a negligence
cause of action must be commenced with three years. (CPLR 214-a & 214).
The Court will give Claimant the benefit of using the latest possible date that
a claim for conscious pain and suffering could be asserted, namely his date of
death of May 20, 2001. Using this date, the underlying statute of limitations
for a medical malpractice action would not expire on this matter until
two-and-one-half years later on November 20, 2003 or for a negligence claim
until May 20, 2004. Accordingly, this motion filed on November 25, 2002 was
timely filed with respect to the proposed conscious pain and suffering cause of
action regarding both theories of liability.
10 (6) Factors
The factors that the Court must consider in determining a properly framed CCA
10 (6) motion are whether:
1. the delay in filing the claim was excusable,
2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances
underlying the claim,
4. the claim appears to be meritorious,
5. the failure to file or serve upon the attorney general a timely claim or
to serve upon the attorney general a notice of intention resulted in
substantial prejudice to the State, and
6. the Claimant has any other available remedy.
The first factor is whether Claimant is able to demonstrate an excuse for the
delay in filing the claim. Claimant argues that both the Facility and Arnot
were slow in releasing medical records. The Court finds this excuse
unacceptable since Claimant did not even request said records until May 2002.
(Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 5).
Notice of the essential facts, opportunity to investigate and lack of
substantial prejudice comprise the next three factors and may be considered
together since they involve analogous considerations. Claimant argues that the
State received notice by way of a letter dated July 18, 2002 and by the mere
fact of an inmate's death. The Court agrees. Although this inmate did not die
on Elmira's premises, Claimant has submitted sufficient documentation that this
inmate's death triggered an investigation by the State Commission of Correction
only days after his death. (Claimant's Reply Affirmation, Exhibit C). As such,
the Court finds that the State had actual notice of the essential facts and
conducted an actual investigation within the statutory time period. The Court
also finds a total lack of prejudice to the State since facility and hospital
medical records would be available, as well as Dr. Yin's continuing
availability. These three factors weigh in Claimant's favor.
The next factor is the availability of an alternate remedy. The alternate
remedy here appears to be against Arnot relating to Claimant's three day stay at
the hospital prior to his death. Inasmuch as Claimant has not excluded the
possibility of liability, in whole or in part, by Arnot, the Court finds that
this factor must weigh against Claimant.
The issue of whether the proposed claim appears meritorious has been
characterized as the most decisive component in determining a motion under CCA
10 (6), since it would be futile to permit a meritless claim to proceed.
(Santana, 92 Misc 2d at 10). In order to establish a meritorious claim,
Claimant must establish that the proposed claim is not patently groundless,
frivolous, or legally defective and that there is reasonable cause to believe
that a valid claim exists. (Id. at 11). To the extent this proposed
claim contains allegations of negligent supervision including, among other
things, the State's failure to monitor Claimant's food intake, the Court finds
the undisputed allegations support a finding of the appearance of merit.
With respect to the allegations of medical malpractice, the Court recognizes
the additional principle that an application to late file sounding in medical
malpractice generally requires further support in the form of an expert's
affidavit, for it is only through an affidavit from someone who has the
qualifications to allege a deviation from generally accepted medical standards
setting forth facts which establish said deviation that the court may determine
the potential merit of the proposed malpractice claim. (Schreck v State of
New York, 81 AD2d 882; Jolley v State of New York, 106 Misc 2d 550).
Here, Claimant submitted a two-page report dated January 28, 2003 purporting to
have been completed by a medical expert retained by Claimant. (Claimant's Reply
Affirmation, Exhibit B). The expert's name has been redacted; no qualifications
are set forth; and the report is not signed or otherwise affirmed. As such, to
the extent that the proposed Amended Claim includes medical malpractice
allegations, this Court must determine whether: (1) an unsigned anonymous
expert's report satisfies this obligation; and, if not, (2) does this case fall
under the exception to the general rule in which an expert's affidavit is not
In examining the first question, the Court finds that an unsigned anonymous
expert's report does not satisfy a claimant's obligation on a late filing
application. Claimant explains these omissions were intentional because:
"[p]ursuant to applicable case law, the expert's name has been redacted at this
time." (Reply Affirmation, ¶ 6). The Court can only presume that counsel
is referring to CPLR 3101 (d) (1) (i) which states that in medical malpractice
actions "[a] party, in responding to a request, may omit the names of
medical...experts but shall be required to disclose all other information
concerning such experts otherwise required by this paragraph." In this Court's
view, CPLR 3101 (d) (1) (i) does not supplant Claimant's obligation under CCA 10
(6) to establish for the Court that the proposed claim appears meritorious.
Claimant has not cited nor has this Court's own research located any authority
which would allow a late filing applicant to meet this burden based upon a
redacted expert's report.
In short, this
Court finds that a supporting expert's affidavit or affirmation in a late filing
application must include both the expert's identity and experience thereby
providing the foundation for the Court to assess its proper value in determining
the factor of merit.
Here, Claimant has
failed to submit such an affidavit.
Consequently, this case must be viewed as one in which no expert's affidavit
has been submitted and, as such, the second question presented to the Court now
becomes pivotal, namely whether this case falls under the exception to general
rule in which an expert's affidavit is not required with a late filing
application involving a medical malpractice claim. Some cases have identified
an exception when medical reports or hospital records are sufficient to
establish merit of a proposed medical malpractice claim. (Caracci v State of
, 178 AD2d 876, 877-878 [failure to inform of positive test result;
appearance of merit established by radiologist reports]; De Paola v State of
, 99 AD2d 762). Still other cases have found the totality of the
circumstances warrant the application of the exception to the general rule
requiring an expert's affidavit on a late filing application. (Zapata v
State of New York
, Ct Cl, April 20, 2000, Lane, J., Claim No. None, Motion
No. M-60903 [UID No. 2000-012-506]).
, the Honorable John P. Lane was presented with a proposed claim
alleging both negligence and medical malpractice arising from a correctional
facility's prescription of medication to an inmate. The inmate made complaints
of physical side effects for almost two months after receiving the medication,
but was advised by medical personnel that there was no concern. Ultimately, the
inmate was transferred to a local hospital and advised that he had been
prescribed the wrong medicine. The late filing application was supported by
medical records but no expert's affirmation. Judge Lane found that although
"[t]here is no question that expert testimony at trial will be required in order
to establish claimant's cause of action...", the lack of an expert's affidavit
was not fatal to that claimant's application in view of the entire record which
included the State's failure to dispute the underlying allegations and admission
of notice, the relatively short delay, and the complete lack of prejudice.
, p 5).
Here, this Court has found that the State had actual notice of these essential
facts and conducted an actual investigation into this matter resulting in a
total lack of prejudice to the State. Additionally, there are undisputed
factual allegations that this Claimant was in the State's care for, at least,
the four-month period leading up to his transfer to
Furthermore, Claimant has submitted a
"case summary" prepared by the State's own physician which confirms that
Claimant's condition and refusal to eat were known to the State as early as
February 26, 2001, but the State did not transfer him to a hospital until four
months later. In viewing this record as a whole, including the undisputed
factual history of this Claimant's known condition for four months, the State's
actual notice of these essential facts and opportunity to investigate, this
Court finds that Claimant has established that the medical malpractice portion
of his proposed amended claim has the appearance of merit notwithstanding the
absence of an expert's affidavit.
Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the
Court finds that four of the six factors, including the all-important factor of
merit, weigh in Claimant's favor.
Accordingly, for the reasons stated above, IT IS ORDERED, that Claimant's
motion for permission to permit the late filing and service of a claim, Motion
No. M-66101, is GRANTED. Claimant shall file a claim with the Clerk of the
Court and serve a copy of the claim upon the attorney general within sixty (60)
days from the date of filing of this Decision and Order with the Clerk of this
Court. The service and filing of the claim shall be in conformity with all
applicable statutes and rules of the Court with particular reference to CCA 10,
11 and 11-a.