This is a motion of Lisa Ehrlich (hereinafter
for permission to file a late claim
pursuant to Court of Claims Act §10(6), relating to alleged negligence and
medical malpractice arising out of the delivery and post-partum care of movant
on the birth of her daughter on March 19, 2003 at the State University Hospital
at Stony Brook (hereinafter "defendant").
The alleged acts of malpractice occurred during a cesarean section when a pad,
20 cm x 20 cm x .3 cm, was left inside movant. The pad was discovered on March
24, 2003, after several diagnostic procedures and the placement of an NG tube.
An exploratory procedure was undertaken and the pad was removed.
Defendant has submitted no opposition to movant's motion.
In order to determine whether to grant a timely made 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):
(1) whether the delay in filing the claim was excusable;
(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 failure to file or serve a timely claim or serve a timely notice
of intention resulted in substantial prejudice to the State;
(5) whether movant has another available remedy; and
(6) whether the claim appears to be meritorious.
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 delay in filing a claim was because she gave birth to her
daughter after only a 24 week gestation period. Movant's daughter died
thirty-one days after her birth. Movant claims that she was too emotionally
distraught during the 90 day statutory notice period. According to the papers,
this was movant's first pregnancy which terminated in the premature birth of her
daughter. Movant was not released from the hospital until March 30, 2003,
approximately six days after the discovery of the pad. Thereafter and until the
time of the daughter's death, movant was concerned with the care and health of
her daughter. Movant then had to deal with the grief of losing her child. The
Court finds that movant has presented a reasonable excuse for not filing within
the 90 day statutory period. Movant was clearly mentally incapacitated during
this time (see Elting v State of New York, 8 AD2d 640).
The second, third and fourth 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. The Court will consider these factors together.
All of movant's medical records are maintained by the hospital, and the State
has access to these records which would have provided it with notice of the
essential facts and an opportunity to investigate (Rechenberger v Nassau
County Medical Center, 112 AD2d 150). Therefore, there is no substantial
prejudice to the State.
Movant does appear to have an alternative remedy, in that the doctors who
performed the procedure could be sued personally.
While the presence or absence of any one of the six factors in not dispositive,
(see Bay Terrace Coop. Section IV v New York State Employees' 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. The 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 (Matter of Santana v New York State Thruway
Auth., 92 Misc 2d 1). If a 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) weighed in favor of the movant's request.
The Court is satisfied that the claim is meritorious. Movant's medical records
which are attached to her papers indicate that the pad was left in movant.
As previously stated, defendant submits no opposition to the instant
In conclusion, the majority of factors favor movant. Therefore, movant's
application to file a late claim is granted. Movant shall serve and file the
proposed claim within forty-five (45) days of the filing of this decision and
order in accordance with §§10, 11 and 11-a of the Court of Claims