This is the motion of Joseph and Camille
for permission to serve and file a late
claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In the
proposed claim, it is alleged as follows. In April of 2002, claimant was
admitted to the State University of New York Downstate Medical Center/Health
Science Center for treatment of a bladder condition. During the course of such
treatment, he had a chest x-ray which, "together with signs and symptoms
displayed by claimant, were consistent with early stage carcinoma of the lungs.
[Defendant] . . . [was] negligent in . . . [failing] to properly diagnose and
treat claimant and [failing] to properly read and interpret the diagnostic films
and tests taken in April of 2002." See proposed claim, exhibit 6 to claimants'
moving papers. In claimant's affidavit, which provides more detail than the
proposed claim, Mr. Byczek states that in December of 2002, he was advised that
another bladder surgery was needed, for which he had to be "medically cleared"
by his cardiologist. When he then went to see the cardiologist, he learned for
the first time that there was a "mass or tumor in [his] lungs," and he was
subsequently diagnosed with cancer. According to claimant, the cardiologist
told him that the tumors and masses on his lung were in fact evident on his
earlier April 2002 x-ray. In order to determine this motion, six factors
enumerated in the Act must be considered: whether (1) defendant had notice of
the essential facts constituting the claim; (2) defendant had an opportunity to
investigate the circumstances underlying the claim; (3) defendant was
substantially prejudiced; (4) claimant has any other available remedy; (5) the
delay was excusable and (6) the claim appears to be meritorious. The factors
are not necessarily exhaustive, nor is the presence or absence of any particular
With regard to notice, claimants point out that defendant is in possession of
Mr. Byczek's medical records. But if such were sufficient to impute notice for
the purpose of the Act, this would mean that in any medical malpractice case,
such factor would automatically be satisfied. See O'Shea v State of New
York, Ct Cl filed November 5, 1999 (unreported, motion no. M-59853, Marin,
J.), affd 278 AD2d 237, 717 NYS2d 293 (2d Dept 2000). While notice has
not been satisfied, such medical records do, however, offer an opportunity to
investigate at this time. In addition, aside from a general assertion,
defendant has pointed to no identifiable prejudice.
As to an alternate remedy, defendant argues that claimant may sue the physician
who treated him in Supreme Court. Claimant does not dispute that this factor
has not been met. As to excuse, claimant could not have known of the existence
of any medical malpractice claim during the 90 days following his April 4, 2002
chest x-ray, as he was not advised of the x-ray results until January of
Accordingly, I find that the excuse
factor has been satisfied.
Finally, it must be determined whether the proposed claim appears meritorious.
Claimants have submitted no affidavit from a physician. There is authority that
such is a condition precedent to a finding of merit. See, e.g.,
Schreck v State of New York, 81 AD2d 882, 439 NYS2d 162 (2d Dept, 1981);
Favicchio v State of New York, 144 Misc 2d 212, 543 NYS2d 871 (Ct Cl
1989); and Jolley v State of New York, 106 Misc 2d 550, 434 NYS2d 122 (Ct
Cl 1980). A number of appellate division cases have held that a medical
affidavit is not necessary, but in such cases, claimants submitted medical
records patently sufficient to show the appearance of medical malpractice.
See Caracci v State of New York, 178 AD2d 876, 577 NYS2d 925 (3d Dept
1991); O'Shea, supra; and DePaolo v State of New York, 99
AD2d 762, 472 NYS2d 10 (2d Dept 1984).
In the instant case, claimants have submitted no medical records at all, and
rely solely on Joseph Byczek's affidavit as to what happened to
In its reply papers, defendant submits a
two page report of the April 4, 2002 chest x-ray, which refers to a variety of
medical conditions, which may be chronic. Such states in relevant part:
Mass noted in the right upper lobe. This may have been present on the previous
study. Previously, the mass was smaller and consisted of overlapping lung
See exhibit A to defendant's opposition papers.
, the clinic did not inform claimant that her
radiology report indicated that the mass in question could be cancerous and that
a CAT scan was recommended. As the Third Department noted, the clinic's conduct
could be "assessed on the basis of common everyday experience and knowledge
without reference to an expert's opinion." 178 AD2d at 877, 577 NYS2d at 926.
Here, in contrast, it is not apparent from Byczek's x-ray report that the mass
was potentially cancerous, or what subsequent treatment would be appropriate.
See also Diaz v State of New York
, Ct Cl dated April 11, 2002
(unreported, motion no. M-63160, Fitzpatrick, J., UID
). In sum, the merit factor of
the Act has not been met by claimants in this case.
Accordingly, having reviewed the parties'
, IT IS ORDERED that motion no.
M-69096 be denied.