This is a motion of Edward J. Condolff and Joan M. Condolff (hereinafter
for permission to file a late claim
pursuant to Court of Claims Act §10 (6), relating to an alleged act of
medical malpractice occurring from July 11, 2002 through July 25, 2002, when
Edward J. Condolff was a patient at University Medical Center at Stony Brook
(hereinafter "Stony Brook").
Movant took his
own blood pressure at home and was unable to get a reading (Affidavit of Edward
J. Condolff ¶ 1). After calling 911, he was taken by ambulance to Stony
Brook where he was admitted on Thursday, July 11, 2002 with complaints of
feeling faint. At the hospital doctors placed him on a medication he was told
was heparin (id. ¶ 4). Over the weekend movant began to experience pain in
his right lower back and numbness in his right leg (id.¶5).
On or about July 15, 2002, a CT scan of his abdomen and pelvis was done. He
was told the pain and numbness was due to a massive bleed from the heparin
(id.¶¶ 8,9). As a complication of heparin therapy, movant bled into
his abdomen, a condition that allegedly went undiagnosed and untreated for at
least two days. As a result of this delay, the bleeding caused permanent nerve
damage to movant's right leg requiring him to ambulate with a walker (Shumer
In order to determine whether to grant an application for permission to file a
late claim, the Court must consider, among any other relevant factors, the six
statutory factors set forth in Court of Claims Act § 10(6):
(2) whether the State had notice of the essential facts constituting the
(3) whether the State had an opportunity to investigate the circumstances
underlying the claim;
(4) whether the claim appears to be meritorious;
(5) whether the failure to file or serve a timely claim or serve a
notice of intention resulted in substantial prejudice to the State;
(6) whether the movant has another available remedy.
The Court in the exercise of its discretion balances these factors, and, as a
general rule, the presence or absence of any one factor is not dispositive
(Bay Terrace Coop. Section IV v New York State Employees' Retirement System
Policemen's and Firemen's Retirement System, 55 NY2d 979).
Movant attributes the failure to timely file a claim to the fact that it was
not until late October 2002, that he finally gained the physical and emotional
strength to seek the advice of an attorney (Condolff Affidavit ¶15).
Although a physician's affirmation has been submitted, it is silent as to
whether movant's physical condition prevented him from filing a timely claim,
and, as such movant has failed to provide a reasonable excuse (Goldstein v
State of New York, 75 AD2d 613). Further, it appears movant could commence
a lawsuit against the attending physicians as an alternate remedy.
The second, third and fifth factors (notice of the essential facts constituting
the claim; an opportunity to investigate the circumstances underlying the claim;
and whether the delay resulted in substantial prejudice to the State) are
related and will be considered together.
As stated previously, movant, having been admitted to Stony Brook was placed on
heparin and, as a complication of heparin therapy, bled into his abdomen which
allegedly went undiagnosed for two days. Hospital records were maintained, and
the defendant is in possession of these records and has access to them. Through
medical records, Stony Brook did have actual notice and was given an opportunity
to investigate. Thus, there does not appear to be any undue prejudice to the
State (Rechenberger v Nassau County Medical Center,112 AD2d 150).
While the presence or absence of any one of the six factors is not dispositive,
(see Bay Terrace Coop. Section IV v New York State Employee's Retirement
System Policemen's and Firemen's Retirement System, 55 NY2d 979), the most
critical factor always is the apparent merit of the proposed claim.
Movant need only establish that the proposed claim is not patently groundless,
frivolous or legally defective and there is reasonable cause to believe that a
valid cause of action exists (see Matter of Santana v New York State Thruway
Auth., 92 Misc 2d 1). If movant cannot meet this low threshold and the
claim is patently without merit it would be meaningless and futile for the Court
to grant the application even if all the other factors in Court of Claims Act
§ 10(6) weigh in favor of movants request.
As required when alleging medical malpractice, movant has submitted a
physician's affirmation from Alan Green, M.D. Dr. Green did not have Stony
Brook medical records to review and instead relied on movant's affidavit
(Green Affirmation ¶2). Movant's attorney noted that he sent an
authorization to Stony Brook on or about October 29, 2002 and, to date, alleges
he still has not received the records (Reply Affirmation of David Shumer
¶¶ 6,7). Therefore, movant's medical expert based his opinion on his
knowledge and experience with heparin.
Defendant, in its opposition papers, declares that the physician's
affirmation submitted by movant consists merely of a narrative on heparin.
Defendant cites Jolley v State of New York, 106 Misc 2d 550, in which
the Court found that an attorney's affirmation, although the attorney had
experience in medical malpractice, was not sufficient to establish merit and
that such allegations were no substitute for the sworn statement of a physician
(id. 551). This is distinguished by the instant case, in which an affirmation
of a physician has been submitted. Even though the physician did not have
access to medical records, he attests that he is familiar with neurological
injuries and with adverse reactions to heparin (Green Affirmation ¶1). He
further attests that bleeding related to heparin therapy often occurs in the
abdomen, causing a hematoma to form in the retroperitoneum (id.¶6). If the
bleeding into the retroperitoneum is left untreated, a large enough hematoma
will form and put pressure on the nerves resulting in nerve damage (id.
¶7). Dr. Green also states that treatment for any type of bleeding
associated with heparin therapy must include stopping the infusion of heparin
immediately (id. ¶12). He opines to a reasonable degree of medical
certainty that movant was suffering from a retroperitoneal hematoma caused by
bleeding as a complication of heparin therapy ( id. ¶14). He alleges that
it was a departure for doctors treating movant to fail to recognize these
symptoms. The Court finds that the affirmation of Dr. Green is sufficient to
support an appearance of merit.
The State asserts that the proposed claim does not contain sufficient
particularization of its conduct as it relates to the allegations, and thus
gives no clear notice as to what duties were owed to movant, all in violation of
the requirements of Section 11 of the Court of Claims Act ( Heisler v State
of New York, 78 AD2d 767 ). "What is required is not absolute exactness,
but simply a statement made with sufficient definiteness to enable the State to
be able to investigate the claim promptly and to ascertain its liability under
the circumstances" (id.). The proposed claim states the time and place where
the claim arose and the nature of the action. The Court finds that it does
comply with Section 11 of the Court of Claims Act.
Based on the foregoing, the Court concludes that the majority of the statutory
factors favor movants' application and therefore grants movants permission to
file a late claim. The Court directs movants to file and serve a claim within
forty-five (45) days after this order is filed and to do so in conformity with
the requirements of Court of Claims Act §§ 10, 11 and 11-a.