New York State Court of Claims

New York State Court of Claims

ELBERT v. THE STATE OF NEW YORK, #2007-030-516, Claim No. NONE, Motion No. M-72684


Synopsis


Late claim medical malpractice motion denied. Theory is that giving the MMR vaccine caused Claimant’s ultimate paralysis: something that can be understood by a layperson. Only unsupported assertions of the Claimant and his attorney have been submitted in support of any claim of malpractice. No treating physician or expert witness affidavit. Merely attaching some medical records to Reply papers in this case, without an explanation from a qualified expert opining that the required causation is present, does not establish the appearance of merit. When the excuse offered for the delay is inadequate and the proposed claim is of questionable merit the Court appropriately exercises its discretion to deny an application for late claim relief

Case Information

UID:
2007-030-516
Claimant(s):
ANTHONY ELBERT
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
ELBERT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-72684
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
RICE & RICEBY: JARED R. RICE, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
March 8, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers numbered 1 to 5 were read and considered on Claimant’s motion


for permission to serve and file a late claim:

1-3 Notice of Motion, Affidavit by Anthony Elbert, Claimant; Affirmation in Support by Jared R. Rice, attorney for Claimant and attached exhibits

  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General and attached exhibits
  1. Reply by Jared R. Rice, attorney for Claimant and attached exhibit[2]
In the Affidavit in support of his motion, Anthony Elbert alleges that on March 19, 2002 he received the Measles/Mumps/Rubella Vaccine (MMR) at Downstate Correctional Facility, which he asserts had adverse effects on his health, ultimately resulting in paralysis from the waist down. He states that he was transferred to Coxsackie R.M.U. Correctional Facility and received continued medical treatment there until his release on June 19, 2006. Because he was confined to a locked hospital room for up to 23 hours per day, he asserts it was difficult to contact the outside world and obtain adequate legal services.

Claimant’s attorney indicates he first met with Mr. Elbert on November 10, 2006, and that his investigation after being retained confirmed that Mr. Elbert had received the MMR vaccination on the aforesaid date, that adverse effects from the vaccination led to his paralysis, and that he was placed at Coxsackie until his release, unable to gain access to legal advice, or to secure legal representation even after his release on June 19, 2006. [Affirmation in Support by Jared R. Rice, ¶¶3, 4, 6, also Exhibit A].

Counsel indicates that the State of New York had notice of the underlying claim since Claimant was an inmate confined to New York State Department of Correctional Services [DOCS] facilities, and all records would be in the possession of DOCS. [Ibid. ¶7]. Counsel also argues that because claimant filed a claim with a federal court on June 1, 2005 the State of New York had notice of the underlying facts. [Id. Exhibit B[3]]. In the same vein, Counsel argues that because the incident occurred in March 2002 and claimant was in DOCS custody until June 19, 2006 the State of New York has had ample time to investigate and DOCS should have accurate records. [Ibid. ¶8]. Counsel avers there is no prejudice to the State, and also notes that “since the date to file a late notice of claim recently expired on September 17, 2006, not too much time has elapsed which would cause any substantial prejudice to the State.” [Ibid. ¶10]. No other remedy is immediately apparent.

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.[4] 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 two and one-half (2 ½ ) years, thus the motion is time barred unless some other reason for allowing the motion appears evident. Civil Practice Law and Rules §214-a.

Counsel for claimant appears to argue that the date of accrual is June 19, 2006, when claimant was released from custody. A fair reading of Claimant’s affidavit in support of the present motion, the proposed claim itself, and Counsel’s affirmation does not support this view. No information as to how a vaccine given on March 19, 2002 relates to any subsequent medical complaints or treatment received is presented to even evaluate whether the continuous treatment doctrine should apply. 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). 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 et al v New York City Health and Hospitals Corporation, 90 NY2d 333, 340 (1997). Accordingly, the present motion is not timely because it is brought almost five (5) years after the date of accrual, and is denied for that reason alone.

More substantively, and setting aside the issue of timeliness of the motion, the Claimant has not established entitlement to late claim relief based upon a review of all the required statutory factors.

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit.

His mere incarceration, and movement within the system, and the asserted difficulty in obtaining representation by counsel or otherwise conferring with counsel, does not constitute a reasonable excuse in the nature of a disability[5], or otherwise. See Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl 1978). With respect to any asserted impairment, more than the claimant’s or the attorney’s statement that he was not in the right condition to pursue his claim is required - even in the context of a mental disability - in the form of medical records or a physician or psychiatrist’s affidavit. See Cabral v State of New York, 149 AD2d 453 (2d Dept 1989)[6]; Goldstein v State of New York, 75 AD2d 613, 614 (2d Dept 1980)[7]. Here, all that Claimant asserts is that he is in a wheelchair. Standing alone, this is insufficient. There must be some showing that the circumstances of his incarceration prevented claimant from taking effective steps to perfect his claim within ninety (90) days of its accrual, or contact an attorney. Bommarito v State of New York, 35 AD2d 458, 459 (4th Dept 1971); see generally Court of Claims Act § 10(3). Claimant has made no such showing, thus this factor weighs against him.

Any lack of knowledge of the law or an inability to retain counsel do not constitute acceptable excuses. Innis v State of New York, 92 AD2d 606 (2d Dept 1983), affd, 60 NY2d 654 (1983); Musto v State of New York, 156 AD2d 962 (4th Dept 1989).

The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, also weigh against granting Claimant’s motion. It has been five (5) years since the vaccination claimant alleges triggered his failing health, thus the State’s ability to investigate is impeded to its prejudice by the passage of time alone. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half months from date of accrual). Mere residence in a correctional facility is generally insufficient to provide notice, although in certain circumstances, notice may be inferred if the occurrence would be noted and investigated in the normal course. Wolf v State of New York, 140 AD2d 692 (2d Dept 1988) (accident report and State employee involved in accident); Carmen v State of New York, 49 AD2d 965, 966 (3d Dept 1975) (police accident report and internal memoranda); Turner v State of New York, 40 AD2d 923 (3d Dept 1972) (not enough that State maintains facility). On balance, these factors weigh against granting the motion.

The appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim. When the proposed claim asserts a cause of action requiring an expert opinion in order to be established, an affidavit of merit from a qualified expert should be included with the application. Perez v State of New York, 293 AD2d 918 (3d Dept 2002)[8]; Schreck v State of New York, 81 AD2d 882 (2d Dept. 1981)[9]; Favicchio v State of New York, 144 Misc 2d 212, 214 (Ct Cl 1989)1[0]; Jolley v State of New York, 106 Misc 2d 550, 551-552 (Ct Cl 1980)1[1]; but c.f. DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984).1[2] In some senses, a late claim applicant has a higher burden than one who has timely served and filed his claim. Nyberg v State of New York, 154 Misc 2d 199, 202-203 (Ct Cl 1992).1[3]

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 caregiver 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 (1999).

In this case, only the unsupported assertions of the Claimant and his attorney 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. Merely attaching some medical records to Reply papers in this case, without an explanation from a qualified expert opining that the required causation is present, does not establish the appearance of merit. See Perez v State of New York, supra. If the theory is that giving the MMR vaccine caused Claimant’s ultimate paralysis, this is not something that can be understood by a layperson. There is no medical evidence on any medical issue and thus claimant has not established the appearance of merit of his claim.

“[W]hen the excuse offered for the delay is inadequate and the proposed claim is of questionable merit . . . (citations omitted)” the Court appropriately exercises its discretion to deny an application for late claim relief. Perez v State of New York, supra, at 919; see also Gonzalez v State of New York, 299 AD2d 675 (3d Dept 2002).

Accordingly, and after having carefully considered the relevant statutory factors, the Court finds that the balance of factors weigh against Claimant, and it is therefore

ORDERED, that Claimant’s application for permission to serve and file a late claim is in all respects DENIED.

March 8, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[2]. The Court also received a Sur-reply by Mary B. Kavaney, Assistant Attorney General after the motion was marked submitted.
[3]. Interestingly, in this federal claim additional information is supplied concerning other potential medical issues and causes of his paralysis, unexplained by a medical expert. [See Exhibit B]. For example, Claimant indicates he was suffering from asthma prior to the vaccination for which he used an inhaler; that he was injured with a stab wound and took antibiotics; and that he collided with other players while playing basketball on several different occasions in 2001, injuring his hand, hip, knee, buttocks, and both ankles. [Ibid.]. There are also indications that he received medical attention for various different complaints at different correctional facilities. None of this supports the present motion.
[4]. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted).”]
[5]. Although Court of Claims Act §10(5) provides that a claimant under a “legal disability” may present a claim two (2) years after such disability is removed, being confined to a wheelchair is not such a recognized legal disability. Rather, the traditional legal disabilities of infancy, incompetence or insanity are what is contemplated. See Civil Practice Law and Rules§208. Claimant has not shown how he is unable to protect his legal rights by his overall inability to function in society as suggested by counsel.
[6]. “The only excuse offered in support of the contention that the delay was excusable was a conclusory assertion by the claimant’s counsel, unsupported by a physician’s affidavit, that the claimant’s alleged hospitalization at some undisclosed time delayed her from contacting an attorney, and that the claimant had no knowledge of the 90-day statutory filing requirement.”
[7]. “Although claimant alleged she was either hospitalized or convalescing for the entire period during which she could have timely filed the claim, such alleged incapacity is inadequate as an excuse for late filing without either a physician’s affidavit or hospital records . . . (citation omitted).”
[8]. In proposed claim alleging that the misdiagnosis and inadequate treatment of a cancerous ulceration on his leg resulted in deformity and permanent injury, medical records alone are insufficient in support of late claim motion. Expert medical evidence was required to show that the alleged inadequate treatment of ulcer was inadequate in the first instance, and that the ulcer was cancerous when examined, and how such failures are linked to the damages suffered.
[9]. 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.
1[0]. 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.
[1]1. 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.
1[2]. Denial of inmate’s motion to file late claim abuse of discretion where medical records furnished established that he suffered from the medical conditions that the Motrin packaging literature advised precluded prescription of the drug, in a claim alleging medical malpractice based upon physician’s allegedly improper direction that inmate take Motrin. No medical affidavit needed to be furnished under these circumstances.
1[3]. Late claim applicant has higher burden than one who has timely filed a claim. Need opinion by qualified person to establish appearance of merit in claim alleging negligence based upon the absence of a highway median.