New York State Court of Claims

New York State Court of Claims

MEJIA v. THE STATE OF NEW YORK, #2007-015-216, Claim No. 110969, Motion No. M-73247


Synopsis


In a claim for medical malpractice, the filing of a grievance relating to the treatment rendered at one correctional facility sufficiently signaled the end of trust in the medical care provided there and required the timely filing of a claim thereafter. Questions of fact were raised regarding the applicability of the continuing treatment doctrine for treatment rendered at other facilities.

Case Information

UID:
2007-015-216
Claimant(s):
LUIS MEJIA
Claimant short name:
MEJIA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110969
Motion number(s):
M-73247
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Luis Mejia, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 24, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves for dismissal pursuant to CPLR 3211(a)(2) alleging that the claim was not served on the Attorney General within ninety days of the accrual of the claim as required by Court of Claims Act §§ 10 (3) and 11. Claimant, an inmate proceeding pro se, alleges that the defendant was negligent in failing to provide adequate medical care at Washington Correctional Facility ("Washington CF") from March 17, 2004 through July 2004 and thereafter at Mt. McGregor Correctional Facility (Mt. McGregor CF") from July 2004 and continuing. He alleges that he felt a pain in his shoulder on April 15, 2004 after lifting a heavy box while working in the industrial training section at Washington CF (claim par. "3")[1]. According to the claim, he reported to the infirmary on April 16, 2004 with complaints of shoulder and arm pain and was given an appointment with Dr. Trachtman who advised him that he could find nothing wrong (claim, par. "3[B]"). He then returned to the infirmary on numerous occasions with complaints of pain in his back which, he contends, were ignored (claim, par. "3[D]" and par. "3[E]"). Claimant alleges that he was transferred to Mt. McGregor CF in July of 2004 where he was given the same treatment until “after complaining through administrative remedies” an MRI was performed on September 23, 2004 which revealed cervical disc disease (see claim par. “3[F] and [G]”). The claimant alleges that as of the date of the claim, nothing was done to “repair the damage to his spine, or to relieve the pain that he continually suffers from” (claim par. “3[H]”). As for the date the claim accrued, the claimant alleges that “[t]he accrual date on this matter is still pending as the Claimant is still awaiting corrective surgery” (see claim par. “4”).

Review of the medical records attached to the claim and submitted in opposition to the instant motion indicate that the claimant was treated for the conditions complained of on multiple occasions at Washington CF from March of 2004 until his transfer in July of 2004. The treatment included physical therapy, X-rays and prescriptions for pain medications. These records also indicate that treatment was rendered at Mt. McGregor CF following his transfer to that facility in July of 2004 and that he was also treated on multiple occasions at Arthur Kill Correctional Facility ("Arthur Kill CF") and by outside health care providers. A medical record from Arthur Kill Correctional Facility dated March 2, 2005 and a consultation report dated April 6, 2005 indicate that a cervical laminectomy was planned.

Review of the copies of the grievances and the responses which were filed together with the claim indicate that they related solely to the treatment rendered at Washington CF and that the first such grievance was filed in June of 2004.

It is undisputed that the claim was filed and served on June 3, 2005.

A claim premised on negligence or malpractice is required to be served and filed within ninety days of accrual unless a notice of intention to file a claim is served within that time, which extends the time to file and serve a claim until two years from the date of accrual (Court of Claims Act § 10 [3]). In support of its motion to dismiss the claim, the defendant contends that the accrual date for the alleged malpractice which occurred at Washington CF is the date of the claimant’s transfer sometime in July 2004. The defendant contends that assuming the claimant was transferred from Washington CF on July 31, 2004, the last date to file and serve a claim for the alleged acts of malpractice which occurred there was October 29, 2004. The claim served on the Attorney General on June 3, 2005 was therefore untimely, according to the defendant.

With respect to the alleged malpractice at Mt. McGregor CF, the defendant contends that the claim accrued on the date that his condition was diagnosed on September 23, 2004. According to the defendant, the claim filed and served on June 3, 2005 was therefore untimely.

In opposition to the defendant’s motion the claimant alleges, as he did in the claim, that the continuing treatment doctrine is applicable to toll the statutory period in which to file and serve the claim.

As a general rule, a medical malpractice claim accrues upon the date of the alleged wrongful act or omission (Nykorchuck v Henriques, 78 NY2d 255 [1991]). The continuous treatment doctrine, codified in CPLR 214-a, was first established in Borgia v City of New York (12 NY2d 151 [1962]), and provides a stay of the statutory limitations period “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” (Mc Dermott v Torre, 56 NY2d 399, 405 [1982], quoting Borgia v City of New York, 12 NY2d 151, 155; Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998]). "The doctrine rests on the premise that the trust and confidence that marks such relationships puts the patient at a disadvantage in questioning the doctor's skill because to sue while undergoing treatment necessarily interrupts the course of treatment ” (Massie v Crawford, 78 NY2d 516, 519 [1991]; see also Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 339 [1997]; Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998]; Rizk v Cohen, 73 NY2d 98, 104 [1989] ). It has been stated therefore that it "would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician or hospital" (Borgia v City of New York, 12 NY2d at 156). However, where conduct of the patient signals the end of the relationship of trust and confidence the policies behind the application of the continuing treatment doctrine no longer comport with its application (Allende v New York City Health & Hosps. Corp., 90 NY2d at 339). For this reason it has been held that the continuing treatment doctrine is inapplicable where a patient's consultation with attorneys "plainly severed whatever relationship of trust and confidence that previously may have been said to exist. . ." (Schloss v Albany Medical Center, 278 AD2d 614, 615 [2000], lv denied 96 NY2d 707 [2001]). In the prison setting where an inmate has no choice but to submit to treatment by a facility physician it has nonetheless been held that "his unequivocal act of signaling legal proceedings by the filing of the notice of intention to file a claim sufficiently memorializes the end of confidence in his course of treatment such that his claim should have been timely filed thereafter" (O'Connor v State of New York, 15 AD3d 827, 828 [2005]; see also Toxey v State of New York, 279 AD2d 927, 929; Larry v State of New York, Ct Cl, December 1, 2003 [Claim No. 107124, Motion No. M-67391, UID # 2003-015-368]) Collins, J., unreported). Likewise, an inmate's claim which included the recitation that a grievance had been filed against the doctor who stopped treatment has been held to indicate the "antitheses" of a trusting relationship thereby providing no basis for the application of the toll (see Watson v State of New York, Ct Cl, June 19, 2006 [Claim No. 111107, Motion No. M-71496, UID # 2006-032-052] Hard, J., unreported). The forgoing cases lead to the conclusion that the claimant's filing of grievances, all of which were related to the treatment rendered at Washington CF, signaled the end of trust and confidence in his course of treatment there such that his claim should have been timely filed thereafter
.
The first grievance having been filed in June of 2004 renders the claim filed and served on June 3, 2005 untimely with respect to the allegations of malpractice that occurred at Washington CF (Court of Claims Act § 10[3]).

A contrary conclusion is reached with respect to the allegations of malpractice occurring at Mt. McGregor CF. The claimant indicates in his affidavit in opposition that the last date of treatment for his shoulder injury was March 2, 2005 (claimant's affidavit in opposition p.2, par. 7). It is apparent, however, from a review of the medical records submitted in opposition to the instant motion, that claimant's shoulder injury was or at least may have been related to his cervical condition and that treatment for this condition continued after the March 2, 2005 date referenced by the claimant. It also appears from these records that following the claimant's transfer to Mt. Mc Gregor CF in July of 2004, he was treated at Arthur Kill CF and by outside health care providers for his cervical condition. Records from Arthur Kill CF dated March 2, 2005 and a report of an outside consultation dated April 6, 2005 indicate that a cervical laminectomy was planned.

Where continuing treatment is provided by someone other than the allegedly negligent practitioner, there must be some agency or other "relevant relationship" between the health care providers for the continuing treatment doctrine to toll the applicable period of limitations (Allende v New York City Health & Hosps. Corp., 90 NY2d at 340 [quoting Meath v Mishrick, 68 NY2d 992, 994); see also Ganapolskaya v V.I.P. Med. Assoc., 221 AD2d 59 [1996]). Mere common ownership of the facilities in which treatment was rendered is an insufficient nexus as, taken to its extreme, such a rule would allow patients to move among commonly owned facilities indefinitely, keeping alive the statutory limitations period for malpractice actions (Allende v New York City Health & Hosps. Corp., 90 NY2d at 340) . In Ogle v State of New York, (142 AD2d 37 [1988]) the Appellate Division, Third Department, addressed the application of the continuous treatment doctrine in the prison setting and concluded that the determination regarding the application of this doctrine could not be made as a matter of law since questions of fact regarding the relationship between the subsequent treating facility and the prison from which the claimant had been treated and transferred precluded such a determination. In reaching this conclusion, the Court declined to follow the holding of the Appellate Division, Fourth Department, in Kelly v State of New York, 110 AD2d 1062 [1985], which applied the continuous treatment doctrine to medical care provided in three different prison facilities on the sole ground that all of the physicians were employed by the State. The Ogle holding requiring "some relevant relationship" between the treating facilities was in accord with the subsequently decided Court of Appeals case, Allende v New York City Health & Hosps. Corp. (supra), which confirmed the requirement for some agency or other relevant relationship between the initial healthcare provider and the subsequent healthcare provider before the subsequent treatment is imputed to the initial healthcare provider for tolling purposes. Judges in the Court of Claims have likewise found the relationship among the prison facilities in which a claimant has been treated a relevant issue in determining the application of the continuing treatment doctrine ( see, e.g., Fragoso v State of New York, Ct Cl, April 6, 2006 [Claim No. 109735, UID # 2006-030-004] Scuccimara, J., unreported; Carathers v State of New York, Ct Cl, June 28, 2006 [Claim No. 109001, Motion No. M-71315, UID # 2006-030-549] Scuccimara, J., unreported; Jones v State of New York, Ct Cl, October 21, 2002 [Claim No. 100743, Motion No. M-65344, UID # 2002-028-058] Sise, J., unreported)[2]. In this case, questions of fact remain unanswered regarding the relationship between Mt. Mc Gregor CF and the subsequent treating facilities and the date treatment for the conditions complained of ended. In the context of a motion pursuant to CPLR 3211, dismissal would be inappropriate.

Defendant's contention that the claim for malpractice occurring at Mc Gregor accrued on the date the condition was diagnosed on September 23, 2004 overlooks the claimant's allegation that treatment relating to that condition continued thereafter. Unlike the facts in Young v New York City Health & Hosps. Corp.(supra) and Nykorchuck v Henriques, (supra) the allegations which form the basis for the claim in this case are not limited to the contention that the defendant failed to diagnose and provide treatment for the condition. Rather, giving this pro se claimant the benefit of every favorable inference (Doe v Community Health Plan ,23 AD3d 778 [2005], lv denied in part and dismissed in part 6 NY3d 802 [2006], cert denied 127 S. Ct. 87 [2006]), the claim includes the contention that the defendant failed to properly treat the condition (see par. "2" of claim). Thus, the fact that the claimant's condition was diagnosed on a date certain provides no basis for dismissal.

Based on the forgoing, the defendant's motion to dismiss the claim is granted only to the extent it alleges malpractice arising out of the treatment rendered the claimant at Washington CF and is otherwise denied.



July 24, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated April 19, 2007;
  2. Affirmation of Michele M. Walls dated April 19, 2007 with exhibit;
  3. Affidavit of Luis Mejia sworn to May 3, 2007 with exhibits.

[1]. There appears to be a discrepancy between the claim and the claimant's medical records as to the date of the shoulder injury and whether the treatment therefor started in March or April of 2004.
[2]. Unreported decisions from the Court of Claims are available via the internet at nyscourtofclaims.state.ny.us./decision.htm