New York State Court of Claims

New York State Court of Claims

CARATHERS v. THE STATE OF NEW YORK, #2006-030-549, Claim No. 109001, Motion Nos. M-71315, CM-71466


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
June 28, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 9 were read and considered on Defendant’s motion

for partial summary judgment, and on Claimant’s cross-motion for late claim relief:

1-3 Notice of Motion, Affirmation of Rachel Zaffrann in Support of Defendant’s Motion for Partial Summary Judgment and attached exhibits; Memorandum of Law

4,5 Notice of Cross-Motion; Affirmation of William J. Rold in Opposition to Partial Summary Judgment and in Support of Cross-Motion to Accept Claim as Late Notice and attachments

  1. Defendant’s Memorandum of Law in Support of Its Motion for Summary Judgment and in Opposition to Claimant’s Motion to File Late Claim and attached exhibits
7-9 Filed Papers: Claim, Answer, Note of Issue

Darrin Carathers alleges in Claim Number 109001 filed on March 5, 2004, and served upon the Office of the Attorney General on or about March 3, 2004, that Defendant’s agents at several New York State Department of Correctional Services (DOCS) facilities were negligent, and failed to provide him with adequate and timely medical care. He recites generally that the actions about which he complains constitute a continuous course of conduct occurring from March 2002 until October 2003.

Notably, a Notice of Intention to file a claim was served upon the Office of the Attorney General on or about May 28, 2002. [Affirmation of Rachel Zaffrann, Exhibit B]. In the Notice of Intention, Claimant describes an incident occurring on March 26, 2002, when Claimant, who is wheelchair bound, was injured during a fall from a loading dock at St. Agnes Hospital while under the care of transportation officers from Green Haven Correctional Facility.

In the Claim, he asserts what amount to three distinct incidents of negligence and/or medical malpractice, and frames five different causes of action premised upon the underlying incidents. First he asserts that on or about March 26, 2002, while being transported to St. Agnes Hospital for a medical evaluation, transportation officers failed to secure his wheelchair at the loading dock of the hospital, and he fell off the dock sustaining injuries. Second, he asserts that Defendant’s agents negligently delayed provision of a medically necessary leg brace prescribed in July 2002, causing him further injury and pain. Finally, he asserts that when he arrived at Shawangunk Correctional Facility at some unspecified time he was given the wrong size catheters, told to rinse and re-use what were clearly “single-use” catheters, and, consequently, contracted a urinary tract infection.

The First cause of action relates only to the alleged negligence in transporting Claimant to St. Agnes Hospital on March 26, 2002. [Claim No. 109001, ¶23]. The second cause of action, entitled “Failure to Protect”, includes both the allegedly negligent transport, and the re-use of “single-use” catheters. [Claim No. 109001, ¶25]. The Third and Fourth causes of action entitled “Medical Malpractice” and “Breach of Duty to Provide Reasonable and Adequate Medical Care to a Prisoner” respectively, refer to the failure to timely provide a leg brace, and the single use catheters. [Claim No. 109001, ¶¶27-30]. Finally, the Fifth cause of action, entitled “Breach of Ministerial Duty”, includes all three factual predicates, as “departures from the non-discretionary ministerial duties owed to Claimant . . . ” [Claim No. 109001, ¶31].

A Note of Issue and Certificate of Readiness was filed by Claimant on January 6, 2006, attesting to completion of all discovery.
Motion for Partial Summary Judgment
Defendant now moves for partial summary judgment, premised upon the defense preserved in it its Seventh Affirmative Defense that the Court lacks jurisdiction over any alleged negligence and/or medical malpractice regarding the leg brace and the single-use catheters because Claimant failed to comply with Court of Claims Act §10. The applicable portion of the statute requires that either a Notice of Intention or the Claim itself alleging personal injuries such as those asserted herein be served and filed within ninety (90) days of accrual. See Court of Claims Act §10(3). If a Notice of Intention is timely served, then the time within which Claimant must serve and file a Claim with regard to those causes of action asserted in the Notice is enlarged to allow service and filing of the Claim to within two (2) years of its accrual.

Court of Claims Act §11(b) requires that a Notice of Intention “. . . state the time when and place where such claim arose, [and] the nature of same . . . ” The purpose of the Notice of Intention is to put the Defendant State on notice of potential suit against it, so that it may investigate the claim and infer a theory of liability. It also acts to extend the period within which a Claim must be served and filed, provided it has been properly served and contains the required information. While it need not be scrutinized with the same attention as a pleading, it should nonetheless perform its notice function, as well as provide specific enough information to determine whether any subsequently served and filed Claim is timely filed.

In this case, the Notice of Intention served herein only referred to the incident involving Claimant’s transport to St. Agnes Hospital for medical evaluation. The alleged failures to timely provide a leg brace or to provide appropriate catheters are not mentioned in the Notice of Intention and, indeed, read in context in the claim itself clearly occurred after the Notice of Intention was served.

As urged by the Defendant, although the Claim is timely with respect to the incident of March 28, 2002, it is clearly not timely with respect to the causes of action arising from the alleged failure to provide a prescribed leg brace in a timely fashion, or to provide appropriate catheters for Claimant’s use.

As acknowledged - at least in part - by Claimant, the claim served and filed is untimely with respect to the causes of action derived from the alleged delays in medical treatment or in the lack of adequate care, unless somehow these causes of action are viewed under a continuous treatment theory. As an alternative, Claimant asks that the Court “accept . . . his Claim as a Late Notice pursuant to the Court of Claims Act, Section 10(6).” [See Notice of Cross Motion].

Under the continuous treatment doctrine, the time in which to bring a malpractice action is stayed “when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint.” Borgia v City of New York, 12 NY2d 151, 155 (1962). The underlying principles behind the application of the doctrine are two-fold: first, it is in the patient’s best interest to continue ongoing medical treatment and second, the initial medical practitioner is in the best position to identify and correct his own malpractice. See Nykorchuck v Henriques, 78 NY2d 255, 258-259 (1991); Toxey v State of New York, 279 AD2d 927, 928 (3d Dept 2001), lv denied, 96 NY2d 711 (2001). Indeed, when a notice of intention is served - the “initiation of the legal process” - any continued relationship of trust between doctor and patient is severed. Toxey v State of New York, supra, at 928-929.

Moreover, when the continuing treatment is provided by someone other than the allegedly negligent practitioner there must be an agency or other relevant relationship between the health care providers. Meath v Mishrick, 68 NY2d 992, 994 (1986); McDermott v Torre, 56 NY2d 399, 403 (1982). Common ownership of correctional facilities by the Defendant is insufficient to trigger the continuous treatment doctrine. Allende v New York City Health and Hospitals Corporation, 90 NY2d 333, 340 (1997).

According to the Claim, Mr. Carathers was prescribed a leg brace in or about July 2002, but “waited over six months for its delivery.” [Claim No. 109001, ¶ 11]. Even assuming that October 2003 - the date alleged in the claim - was the last date of treatment by any medical personnel associated with DOCS, a claim served and filed in March 2004 is not timely, since it is not served within ninety (90) days of its accrual. To the same effect, causes of action premised upon the alleged failure to provide proper catheters, with no dates alleged, are not timely given a claim served and filed in March 2004.

The statute provides in pertinent part “. . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . .” See Court of Claims Act § 10. The provisions concerning service and filing have been strictly construed. See e.g. Welch v State of New York, 286 AD2d 496 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000). Defendant properly preserved the issue in its Seventh Affirmative Defense, thus there has been no waiver. Court of Claims Act §11(c).

Accordingly, the Court agrees that it does not have jurisdiction over the Third and Fourth causes of action asserted in the claim, nor does it have jurisdiction over those portions of the Second and Fifth causes of action referring to injuries suffered stemming from the alleged failure to timely provide a leg brace or the proper catheters. Naturally, if prescription of a leg brace was the result of injuries suffered during the alleged fall off the loading dock, this might be relevant to any damages trial. It does not, however, form a separate item of negligence in the liability portion. These allegations were not preserved in the Notice of Intention, post-date the Notice of Intention, and no claim was served and filed with regard to these allegations within ninety (90) days of accrual. Defendant’s motion for partial summary judgment dismissing the Third and Fourth causes of action, and dismissing the applicable portions of the Second and Fifth causes of action is hereby granted, and the claim is dismissed with regard to these.
Cross-Motion to Accept Claim as Late Notice
The relief requested by Claimant, “to accept claim as late notice”, appears to be an application for late claim relief, and has been treated accordingly. See Court of Claims Act §10(6). In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated 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 serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; 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 e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . .” Court of Claims Act § 10(6). Here, the applicable statute of limitations is either three (3) years if viewed as a negligence claim, or two (2) years and six (6) months if viewed as a medical malpractice claim. Civil Practice Law and Rules §§214 and 214-a. Using the October 2003 time frame it appears that the application is - marginally - timely.

Defendant clearly has had notice and an opportunity to investigate given the disclosure undertaken since issue was joined, thus the related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting Claimant’s motion. Claimant has not established however, that the delay in filing was excusable or, most importantly, that the claim has merit. Claimant has had notice of the Defendant’s Seventh Affirmative Defense since issue was joined, yet did not act to seek dismissal of the defense earlier or, having been apprised of this valid defense, did not move earlier for late claim relief relative to these causes of action. Claimant left DOCS custody in 2003. [See Affirmation of Rachel Zaffrann in Support of Defendant’s Motion for Partial Summary Judgment, Exhibit A, Page 12.]. Thus there is no excuse for having failed to timely serve and file his claims. Accordingly, this factor weighs against Claimant, because no legally acceptable excuse has been presented for the two (2) year or more delay in serving and filing a claim

As argued by Defendant, when a claim seeks recovery for injuries suffered while under medical care the possible theories of recovery include negligence, ministerial neglect, and/or medical malpractice.

It is “fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons,” including proper diagnosis and treatment. Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied, 76 NY2d 701 (1990).

In a medical malpractice claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A Claimant must establish that the medical care giver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. The “ ‘claimant must [demonstrate] . . . that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his . . . injuries’ (Parker v State of New York , 242 AD2d 785, 786).” Auger v State of New York, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept 1976), lv denied, 40 NY2d 804 (1976). A medical expert’s testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231, 239 (1999); cf. Armstrong v State of New York, 214 AD2d 812 (3d Dept 1995), lv denied, 86 NY2d 702.

If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State’s employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony. Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256 (1st Dept. 1986) (leaving postoperative patient in bathroom unattended)[1]. Similarly, the State may be found liable for ministerial neglect if its employees fail to comply with an institution’s own administrative procedures and protocols for dispensing medical care to inmates. Kagan v State of New York, 221 AD2d 7,10 (2d Dept 1996). Claimant must assert what procedures or protocols have been violated, however. No such showing has been made here.

Clearly, it is the quality and adequacy of the medical care received by Claimant that are raised in the within claim. Accordingly, the causes of action concerning the alleged delay in providing a leg brace, and the alleged failure to provide appropriate catheters are best characterized as ones for medical malpractice. As such, in the context of securing late claim relief, it was incumbent upon Claimant to provide an expert affidavit identifying the applicable standard of care and showing how the State’s acts or omissions were inconsistent with that standard, as well establishing a causal connection between any injury associated with a breach of duty. Perez v State of New York, 293 AD2d 918 (3d Dept 2002)[2]; Macey v Hassam, 97 AD2d 919 (3d Dept 1983)[3]; Schreck v State of New York, 81 AD2d 882 (2d Dept 1981)[4]; Nyberg v State of New York, 154 Misc 2d 199, 202 (Ct Cl 1992)[5]; Favicchio v State of New York, 144 Misc 2d 212, 214 (Ct Cl 1989)[6]; Jolley v State of New York, 106 Misc 2d 550, 551-552 (Ct Cl 1980).[7] In this case, only the unsupported assertions of the Claimant have been submitted in support of any claim of malpractice. No competent affidavit, by a treating physician or an expert witness whose opinion was based upon the available medical records, has been submitted to support the allegation of medical malpractice. There is no medical evidence on any medical issue and thus claimant has not established the appearance of merit of his claim.

Accordingly, Claimant’s application for late claim relief relative to the causes of action concerning the allegedly untimely provision of a leg brace and the allegedly improper catheters is hereby denied in all respects.[8]

For the foregoing reasons, Defendant’s motion for partial summary judgment [M-71315] is granted, and Claimant’s cross-motion [CM-71466] is in all respects denied. Trial on the issue of liability with regard to the remaining causes of action shall be scheduled as soon as is practicable.

June 28, 2006
White Plains, New York

Judge of the Court of Claims

[1]. See also Phillips v Buffalo Gen. Hosp., 239 NY 188 (1924)(scalding patient with hot water bottle); Dillon v Rockaway Beach Hosp. & Dispensary, 284 NY 176 (1940)(leaving an electric light bulb under the sheets).
[2]. No expert medical opinion offered to establish the merit of claims of misdiagnosed medical condition as well as improper treatment.
[3]. Expert testimony required to establish proximate cause between use of surgical sutures and plaintiff’s sinus condition.
[4]. Court of Claims abused discretion in allowing late claim to be filed in claim alleging medical malpractice where no affidavit by medical expert causally linking birth of brain damaged child to asserted malpractice submitted.
[5]. Need opinion by qualified person to establish appearance of merit in claim alleging negligence based upon the absence of a highway median; late claim applicant has higher burden than one who has timely filed a claim.
[6]. Opinion by medical expert without underlying basis for it - in this case the medical records the physician indicated he had reviewed - insufficient to establish appearance of merit in late claim motion.
[7]. An attorney’s affirmation by one experienced in medical malpractice litigation is not competent to establish the appearance of merit in application to file late claim alleging medical malpractice. Court did not rely on any other late claim factors in making determination to deny motion.
[8]. The Court has intentionally not addressed Claimant’s arguments concerning discovery. A note of issue and certificate of readiness has been filed with regard to this claim, attesting to completion of all discovery. Should it appear during the course of the trial that Defendant is attempting to use materials not made available to Claimant pursuant to proper demand then any appropriate application may be considered at that time. The Court notes that an individual’s medical records should be available only on consent pursuant to privacy considerations; and also notes that the FOIL mechanism might apply with regard to other records. See, e.g., Public Officers Law §89. Notably, the causes of action sounding in malpractice have been dismissed herein based on timeliness grounds alone - the Court did not consider any documents purportedly not produced during disclosure to reach that determination.