Notice of Motion, Attorney Affidavit, with Exhibit (Affirmation of Allan
Hausknecht, M.D.). 1,2
Affidavit of Henry J. Romano, M.D. 3
Proposed Claim 4
Memorandum of Law in Support 5
Affirmation in Opposition, with Exhibit 6
In their proposed claim, claimants seek damages for personal injuries suffered
by claimant Henry J. Romano
, based upon
allegations of malpractice by medical personnel at the State University of New
York University Hospital. On March 3, 2005, claimant underwent a decompression
surgery for his lumbar spine at University Hospital, with the surgery performed
by Dr. Hansen Yuan, M.D. Two days following the surgery, claimant began to
complain of numbness and weakness in his legs, and that he was unable to stand
or walk. According to the claim, no action was taken by medical personnel until
the following day, March 6, 2005, when claimant continued to complain of the
same symptoms, and an MRI was performed. The MRI showed a spinal cord hematoma,
and surgery was performed later that day, in which this hematoma was drained.
Claimants contend that the delay in evacuating this epidural hematoma
constituted medical malpractice, and that the delay caused Dr. Romano to suffer
severe pain and suffering.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
therein are: (1) whether the delay in filing the claim was excusable; (2)
whether the State had notice of the essential facts constituting the claim; (3)
whether the State had an opportunity to investigate the circumstances underlying
the claim; (4) whether the claim appears meritorious; (5) whether substantial
prejudice resulted from the failure to timely file and the failure to serve upon
the Attorney General a timely claim or notice of intention to file a claim; and
(6) whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see,
Matter of Gavigan v State of New York, 176 AD2d 1117).
With regard to excuse, claimant asserts that he was unaware of the time
limitations for pursuing a claim against the State as set forth in the Court of
Claims Act. From the papers submitted on this application, it appears that
claimant did not first consult with an attorney regarding this claim until seven
months after the alleged malpractice, well beyond the statutory 90 day period
contained in § 10(3) of the Court of Claims Act for unintentional torts.
Claimants’ attorney states that immediately following this consultation,
medical records were obtained and were then forwarded to two physicians for an
opinion of merit, thus accounting for the additional delay between the initial
consultation and the institution of this late claim application.
Even though the Court acknowledges that claimants’ attorneys needed time
to obtain both the medical records and a medical review of this potential claim,
claimants have not provided any legally recognizable excuse for their failure to
consult an attorney within the statutory time limit. Ignorance of the law is
not an acceptable excuse for delay (Matter of E.K. v State of New York,
235 AD2d 540). The Court therefore finds that claimants have not provided an
acceptable excuse for their failure to timely serve and file this claim.
The intertwined factors of notice, opportunity to investigate, and substantial
prejudice will be considered together. Claimants contend that the State had
notice of the essential facts constituting this claim, since the alleged
malpractice occurred at University Hospital, and all aspects of the medical care
rendered to claimant were recorded and maintained in hospital records. However,
the mere existence of medical records does not satisfy a claimant’s
obligation to place the State on notice of the underlying facts of a proposed
claim (Conroy v State of New York, 192 Misc 2d 71), and there is no
indication in the papers before the Court on this application that the State had
any actual notice of this claim until the instant motion was served and filed.
Without such notice, there is no indication that the State had any opportunity
to investigate those facts.
Even though the State did not have any prior notice, nor an opportunity to
investigate the facts underlying this proposed claim, the existence of medical
records should provide the State with a sufficient basis on which to defend this
claim, and the Court finds that the State will not be substantially prejudiced
should it have to defend this claim.
The next factor, often deemed the most critical, is whether the proposed claim
has the appearance of merit. If claimant cannot establish a meritorious claim,
it would be an exercise in futility to grant a late claim application (Savino
v State of New York, 199 AD2d 254; Prusack v State of New York, 117
AD2d 729). In order to establish a meritorious cause of action, claimant has
the burden to show 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 (Matter of Santana v New York State Thruway
Authority, 92 Misc 2d 1).
In an application seeking permission to file a late claim based upon
allegations of medical malpractice, support in the form of an expert’s
affidavit of merit is generally required, since it is only through an affidavit
from someone with the qualifications to allege a deviation from generally
accepted medical standards that the Court may determine the potential merit of a
proposed claim (Schreck v State of New York, 81 AD2d 882; Jolley v
State of New York, 106 Misc 2d 550). In this application, although they
have not presented an opinion from a medical expert in affidavit form, claimants
have submitted an affirmation (in the form of a letter) from Allan Hausknecht,
M.D. After a review of the records provided to him, and even though it is
couched as a “preliminary opinion”, Dr. Hausknecht concludes that
“there were numerous departures in the care and treatment that Dr. Romano
received, which caused his serious, significant, and permanent injuries.”
(See Exhibit A to Items 1, 2). Based upon this submission, the Court finds that
claimant has established that his claim appears meritorious with respect to the
allegations of medical malpractice, sufficient to satisfy the minimal
requirements of Santana.
Claimants’ attorney acknowledges that claimants may have another
available remedy in State Supreme Court, presumably against the physician who
allegedly committed the medical malpractice.
The Court may in its discretion place as much or as little weight on any of the
six factors to be considered pursuant to the statute. Under the current law
"[n]othing in the statute makes the presence or absence of any one factor
determinative" (Bay Terrace Coop. Section IV v New York State Employees'
Retirement System Policemen's & Firemen's Retirement System, 55 NY2d
979) and none of the factors can require denial as a matter of law.
Based upon the foregoing, and after weighing and considering all of the factors
set forth under Court of Claims Act § 10(6), it is the opinion of this
Court that claimants should be allowed to serve and file their proposed claim.
Therefore it is
ORDERED, that Motion No. M-71703 is hereby GRANTED; and claimants are directed
to file and serve their proposed claim, properly verified, within 45 days from
the date of filing of this decision and order in the Clerk’s office, with
such service and filing to be in accordance with the Court of Claims Act, with
particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the
Court of Claims.