NO OPPOSITION FILED
Judy Guzman, the Claimant herein, alleges in Claim Number 109912 that
Defendant's agents failed to provide her with adequate and timely medical care
while she was incarcerated at various correctional facilities, in the custody of
the New York State Department of Correctional Services [ hereafter DOCS].
Specifically, she states that she received ". . . inadequate medical treatment
from October 2003 to the present . . ." after an injury she suffered to her knee
at a farm work program in September 2003. [See Claim No. 109912, ¶¶ 2
and 3]. She also indicates that Defendant's agents were negligent in failing to
provide a safe work environment in the first instance, in failing to provide
proper training to inmates new to farm work, failing to post warning notices
concerning dangers involved in farm work, and in failing to remove claimant from
the work crew once she was injured, but these allegations are not specific as to
any time frame. Notably, the last date of medical treatment alleged in the
claim is April 2004.
She states that a Notice
of Intention was served on July 6, 2004, but no copy of same is appended.
The Claim itself was served upon the Office of the Attorney General on October
1, 2004. [See Exhibit 1 Affirmation in Support]. The claim was filed in
the Office of the Chief Clerk of the Court of Claims on October 1, 2004. An
affidavit of service filed by Claimant indicates that the Claim was served upon
the Attorney General by certified mail, return receipt requested as required.
Court of Claims Act §11; 22 NYCRR §206.5(a).
The Defendant moves to dismiss the Claim based upon a failure to timely serve
the Defendant and to timely file the Claim. Court of Claims Act §§10
and 11. Based upon the actual facts stated in the claim, it accrued at the
latest on April 29, 2004, and was served on the Attorney General's Office on
October 1, 2004: more than ninety (90) days after the accrual date. Court of
Claims Act §10(3). Although the allegation that a notice of intention was
served upon the Attorney General is contained in the claim, there is no proof of
such service in order to toll the period of limitations allowed.
Additionally, and as argued by the Assistant Attorney General, the Claimant
cannot avail herself of the continuous treatment doctrine, to further extend the
time period within which her claim should have been served and filed "to the
present" as averred in her claim, particularly because she does not allege any
action by Defendant's agents beyond April 2004.
Under the continuous treatment doctrine, the time in which to bring a
malpractice action is stayed "when the course of treatment which includes the
wrongful acts or omissions has run continuously and is related to the same
original condition or complaint." Borgia v City of New York, 12 NY2d 151,
155 (1962). The underlying principles behind the application of the doctrine
are two-fold: first, it is in the patient's best interest to continue ongoing
medical treatment and second, the initial medical practitioner is in the best
position to identify and correct his own malpractice. See Nykorchuck v
Henriques, 78 NY2d 255, 258-259 (1991); Toxey v State of New York,
279 AD2d 927, 928 (3d Dept 2001), lv denied 96 NY2d 711 (2001). Indeed,
when a notice of intention is served - the "initiation of the legal process" -
any continued relationship of trust between doctor and patient is severed.
Toxey v State of New York, supra, at 928-929.
Moreover, when the continuing treatment is provided by someone other than the
allegedly negligent practitioner there must be an agency or other relevant
relationship between the health care providers. Meath v Mishrick, 68 NY2d
992, 994 (1986); McDermott v Torre, 56 NY2d 399, 403 (1982). Common
ownership of correctional facilities by the Defendant is insufficient to trigger
the continuous treatment doctrine. Allende v New York City Health and
Hospitals Corporation, 90 NY2d 333, 340 (1997).
As noted by the Assistant Attorney General, the doctrine is inapplicable to the
lack of medical treatment. See Francis v State of New York, Claim
No. 108347, Motion No. M-67697, UID No. 2003-019-577 (Lebous, J., December 22,
This defense concerning the statute of limitations has been raised with
sufficient particularity in a pre-answer motion as required by Court of Claims
Act §11(c), and the cases decided thereunder. See Knight v State
of New York; 177 Misc 2d 181 (Ct Cl 1998).
Because the applicable statute provides ". . . no judgment shall be granted in
favor of any claimant unless such claimant shall have complied with the
provisions of this section applicable to his claim . . ." [ Court of Claims Act
§10], the provisions concerning service and filing have been strictly
construed. See e.g. Welch v State of New York, 286 AD2d
496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268
AD2d 706, 707 (3d Dept 2000).
Accordingly, Defendant's motion to dismiss based upon a failure to serve and
file the claim within the statute of limitations period, is hereby granted, and
Claim Number 109912 is dismissed in its entirety.