New York State Court of Claims

New York State Court of Claims

V. THE STATE OF NEW YORK, #2006-016-056, Claim No. 111846, Motion Nos. M-71742, CM-71796


Synopsis



Case Information

UID:
2006-016-056
Claimant(s):
LATOYA DICKERSON
1 1.The claim as originally served and filed contained two causes of action alleging the wrongful death of Savanna Dickerson, who was named in the caption as a claimant. It is undisputed that such causes of action were withdrawn. The caption has accordingly been amended to reflect such withdrawal.
Claimant short name:

Footnote (claimant name) :
The claim as originally served and filed contained two causes of action alleging the wrongful death of Savanna Dickerson, who was named in the caption as a claimant. It is undisputed that such causes of action were withdrawn. The caption has accordingly been amended to reflect such withdrawal.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111846
Motion number(s):
M-71742
Cross-motion number(s):
CM-71796
Judge:
Alan C. Marin
Claimant’s attorney:
Lawrence Levine, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Marcie K. Glasser, Esq., AAG
Third-party defendant’s attorney:

Signature date:
August 31, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

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 informed consent.


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 #2006-028-542[2]).

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 Consent

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 issue.[3] In Heisler v State of New York, 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 State.


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.
* * *
Accordingly, having reviewed the submissions[4], IT IS ORDERED that motion no. M-71742 and cross-motion no. CM-71796 be granted in part and denied in part to the extent that:
  1. claim no. 111846 is dismissed except to the extent that it contains a cause of action alleging that medical malpractice resulted in the stillbirth of Savanna Dickerson, causing LaToya Dickerson to suffer emotional distress;
  2. defendant’s first affirmative defense is stricken only with regard to the cause of action alleging that medical malpractice resulted in the stillbirth of Savanna Dickerson, causing LaToya Dickerson to suffer emotional distress; and
  3. defendant’s second affirmative defense is stricken.[5]


August 31, 2006
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [2]This and other decisions of the Court of Claims dating from and after 2000 may be found on the court’s website: www.nyscourtofclaims.state.ny.us.
  2. [3]The notice of intention did annex a copy of a discharge summary for LaToya Dickerson, but without any elaboration, such provides no further useful information as to her medical malpractice claim or lack of informed consent claim.
  3. [4]The following were reviewed: claimant’s notice of motion with affirmation in support and undesignated attachments; and defendant’s notice of cross-motion with affirmation in support and exhibits A through D. In addition, oral argument was heard on July 20, 2006.
  4. [5]As to the failure to include a schedule of damages pursuant to §206.6(b) of the Uniform Rules for the Court of Claims, defendant has supplied no authority that such requirement is jurisdictional in nature.