This claim arises from the stillbirth of LaToya Dickerson’s daughter
Savanna at the University Hospital of Brooklyn (“Downstate
Hospital”). Claimant moves to strike the State’s first and second
affirmative defenses. The first affirmative defense is that the claim does not
comply with §11.b of the Court of Claims Act (the “Act”)
because it fails to set forth a total sum claimed and to state with any
particularity the items of damage or injuries alleged to have been sustained.
The second affirmative defense is that the claim fails to comply with
§206.6 of the Uniform Rules for the Court of Claims in that it does not
contain a schedule of damages. Defendant cross-moves to dismiss the claim based
on its first affirmative defense. The claim contains three extant causes of
action: emotional distress suffered by LaToya Dickerson as a result of the
stillbirth of her daughter, caused by medical malpractice; medical malpractice
in connection with LaToya Dickerson’s care and treatment; and lack of
First Cause of Action: Emotional Distress
The Court of Appeals has held that, “even in the absence of an
independent injury, medical malpractice resulting in miscarriage or stillbirth
should be construed as a violation of a duty of care to the expectant mother,
entitling her to damages for emotional distress.” Broadnax v
Gonzalez, 2 NY3d 148, 155, 777 NYS2d 416, 420 (2004).
With regard to this cause of action, I find that the claim sufficiently alleges
the items of damage or injuries sustained, to wit, emotional distress.
As for a total sum claimed, it is undisputed that the claim lacks same.
However, claimant did include a total sum in her notice of intention. Section
11.b of the Act provides that a notice of intention must state the time when and
place where such claim arose, along with the nature of the claim. In the
instant case, no argument has been made that the notice of intention was not
timely and properly served, or that it failed to include such three items. In
fact, as noted, it contained an additional item, i.e., a total sum claimed, and
thus the fact that the later-served claim did not itself include a total sum,
“does not have jurisdictional implications . . .” Gonzalez v
State of New York
, Ct Cl, April 12, 2006 (unreported, claim no. 104279,
motion no. M-70394, cross-motion no. CM-70457, Sise, J., UID
In any event, even without a sum claimed, jurisdiction is not implicated here.
See Kolnacki v State of New York, 28 AD3d 1176, 816 NYS2d 249 (4th Dept
2006), lv granted, 30 AD3d 1116, 816 NYS2d 397 (4th Dept 2006) and
Morris v State of New York, 27 AD3d 282, 813 NYS2d 60 (1st Dept 2006),
distinguishing Lepkowski v State of New York, 1 NY3d 201, 207, 770 NYS2d
696, 700 (2003).
Second and Third Causes of Action: Medical Malpractice and Lack of Informed
The remaining two causes of action fail to adequately state the items of damage
or injuries claimed. With regard to medical malpractice, other than a general
reference to “serious injuries,” the claim provides no specifics.
Similarly, the cause of action for lack of informed consent consists of
conclusory statements, without any specific information. In fact, the claim
does not even state what treatment is at
In Heisler v State of New
, 78 AD2d 767, 433 NYS2d 646, 648 (4th Dept 1980), it was stated that
§11 of the Act:
provides in pertinent part, “The claim shall state the time when and place
where such claim arose, the nature of same, and the items of damage or injuries
claimed to have been sustained and the total sum claimed.” 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. The statement must be
specific enough so as not to mislead, deceive or prejudice the rights of the
I find that the causes of action for medical malpractice and lack of informed
consent have not been stated with sufficient definiteness to enable the State to
investigate and ascertain its liability.