This is a motion for permission to file a late claim. Defendant opposes the
application.
Pursuant to Court of Claims Act § 10(6) a proposed claim, containing all of
the information required by Court of Claims Act § 11, must accompany any
late claim application. Movant
[2] has provided a
“Late Notice of Claim” in which it is alleged that on July 7, 2004,
Denisa Borges underwent surgery for purposes of donating bone marrow at State
University of New York Upstate Medical University (hereinafter University
Hospital). Thomas Coyle, M.D. and Laura Tormey, N. P., performed the surgery.
Movant alleges that as a result of this procedure she has suffered a sciatic
nerve injury, or sympathetic dystrophy syndrome, or Neuroma. She asserts that
while performing the bone marrow donation surgery, Dr. Coyle and Ms. Tormey hit
a nerve and sliced the nerve fibers at S1 lumbar sacroiliac or crushed nerve
fibers causing Movant’s injuries. The claim alleges that this injury does
not occur in the absence of negligence.
A proposed claimant who fails to timely file and serve a claim or serve a
notice of intention may be permitted, upon application and in the discretion of
the Court, to file a claim which complies with § 11 of the Court of Claims
Act, 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 CPLR (Court
of Claims Act § 10[6]).
Movant asserts that her claim accrued on July 7, 2004, but was tolled by the
continuous treatment doctrine until November 1, 2004, the date she last treated
with Dr. Coyle and Ms. Tormey. Pursuant to CPLR 214-a, an action seeking
damages for medical malpractice must be commenced within two and one-half years
from date of the act, omission, or failure complained of, or the last treatment
where there is continuous treatment for the same illness, injury, or condition
which gave rise to the said act, omission, or failure. Defendant strenuously
argues that this application is untimely as the doctrine of continuous treatment
does not apply to extend the time for commencement based upon post-operative or
palliative treatment after surgery.
Movant has attached extensive medical records to her application for late claim
relief. Exhibit 4 are medical records from Thomas E. Coyle, M.D. The
discharge and referral orders following the bone marrow harvest surgery on July
7, 2004, reflect that no follow-up appointment was scheduled for Movant as none
was needed. Due to pain in her lower left back following the procedure, which
she apparently communicated to the Red Cross, the entity which arranged for the
bone marrow harvest, Dr. Coyle saw Movant again on August 18, 2004. Dr. Coyle
attributes the pain at that time to a small hematoma from the bone marrow
surgery which he felt could be irritating the sciatic nerve. His note from that
appointment indicates there would be a reevaluation. Dr. Coyle saw Movant again
on September 13, 2004, September 29, 2004, and November 1, 2004. A follow-up
appointment was scheduled for December 6, 2004, and was rescheduled twice.
Movant did not appear for that last follow-up visit.
The continuous treatment doctrine serves to toll the statute of limitations
from the date of the occurrence or wrongdoing until the treatment for the same
original condition or complaint has ended (Allende v New York City Health and
Hosp. Corp., 90 NY2d 333, 338; Borgia v City of New York, 12 NY2d
151, 155). “The continuous treatment doctrine will be applied where the
patient initiates a timely visit to complain about and seek treatment for a
problem related to the initial treatment.” (Klotz v Rabinowitz,
252 AD2d 542, 543; McDermott v Torre, 56 NY2d 399, 406; Glasby v
Fogler, 303 AD2d 718, 719; see also Lemmerman v Delmar Dental, P.C.,
3 AD3d 771, 804). Here, Movant timely made complaints about pain and
complications right after the bone marrow harvest was performed. A timely
visit was scheduled for Movant to see Dr. Coyle for these complications, and
follow-up visits were scheduled by Dr. Coyle with Movant through December 6,
2004, although Movant’s last visit with Dr. Coyle was November 1, 2004.
Movant’s follow-up visits were directly related to the problems she
encountered following the bone marrow surgery. The Court finds that the
continuous treatment doctrine applies for purposes of determining the timeliness
of this motion and the application for a late claim has been timely made within
two and one-half years of November 1, 2004 (Court of Claims Act
§ 10[6]; CPLR 214-a).
Moving to the substantive analysis, to determine whether an application for
permission to file a late claim should be granted, consideration must be given
to the six factors listed in Court of Claims Act § 10(6) and any other
relevant factors. The presence or absence of any one factor is not
determinative (Bay Terrace Cooperative Section IV, Inc., v New York State
Employees’ Retirement System, Policemen’s and Firemen’s
Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d
965). Instead it is a balancing of all of the factors by the Court which may
warrant the granting of the application to file and serve a late claim.
Movant does not really assert any excuse for failing to timely commence the
Court of Claims action. The underpinning of her entire application is the
significant and on-going pain and discomfort she encountered following the
surgery. However, she continued to work for a period of time, and the medical
documentation presented does not support her physical inability to timely file a
claim. This factor weighs against granting Movant’s application.
Turning to whether the State had notice, an opportunity to investigate the
facts underlying the proposed claim, or whether the State would suffer prejudice
if the application was granted; these factors, being interrelated, will be
considered together. Movant asserts that the State had notice of the essential
facts when she made timely and repeated complaints regarding the pain and
discomfort she was experiencing after the surgery on her left side. Movant had
no prior history of any injuries or problems. Movant also asserts that the
State had the opportunity to investigate as she continued to treat with Dr.
Coyle and Ms. Tormey.
Movant made repeated complaints of pain and discomfort to Dr. Coyle and Ms.
Tormey placing them on notice of the facts underlying this claim, but there is
no indication that Movant’s complications generated any notice to any
person or entity in a position to investigate the surgery (cf., Brown v
State of York, Ct Cl, Midey, J., Decision and Order, Claim No. None, Motion
No. M-71865, UID #2006-009-050, [Movant filed two complaints with Upstate and
one with the Department of Health all related to the treatment of her son, was
found to be sufficient notice]). Yet, there are certainly medical records from
Movant’s surgery and subsequent care which would permit the State to
identify witnesses, and investigate the circumstances surrounding this claim now
minimizing any potential prejudice from the granting of this application.
The next factor, whether the claim appears to be meritorious, is referred to as
the most essential factor. Unlike a party who has timely filed a claim, one
seeking permission to file a late claim has the heavier burden of demonstrating
that the proposed claim appears to be meritorious (see Nyberg v State of New
York, 154 Misc 2d 199). Generally a proposed claim meets this standard if
it is not patently groundless, frivolous, or legally defective, and upon
consideration of the entire record there is cause to believe that a valid cause
of action exists (Matter of Santana v New York State Thruway Authority,
92 Misc 2d 1, 11).
Movant alleges that Dr. Coyle and Ms. Tormey negligently caused damage to her
sciatic nerve during the bone marrow harvest which has resulted in her on-going
pain and discomfort. Movant has attached only medical records; no expert
medical affidavit was provided. The medical records provided adequately
establish that prior to the bone marrow harvest, Movant was a healthy, active
person, and only after the surgery did all of her problems develop. Based upon
the submitted documentation, Movant has set forth sufficient information to meet
the minimum standard for purposes of this application (see DePaolo v
State of New York, 99 AD2d 762 [claimant’s medical records established
condition which, based upon the packaging literature of Motrin, should have
precluded the use of the drug]).
The final factor to be considered is whether Movant has any other available
remedy. Movant’s counsel asserts that there is no other remedy.
Defendant indicates that individual actions may be brought against Dr. Coyle and
Ms. Tormey as they are employed through the private Medical Services Group.
Thus, it is possible that Movant might be able to bring an individual action
against the doctor and nurse practitioner who performed the bone marrow
harvesting surgery at University Hospital.
Upon balancing all of the factors in the Court of Claims Act § 10(6), this
Court GRANTS the motion. Movant should pay the filing fee in accordance with
Court of Claims Act § 11-a and file and serve the proposed claim in
accordance with all applicable laws and rules within forty-five days of the date
this Decision and Order is filed with the Clerk of the Court.
