New York State Court of Claims

New York State Court of Claims

MADDOX v. THE STATE OF NEW YORK, #2007-030-557, Claim No. 113533, Motion No. M-73369


Synopsis


Defendant’s pre-answer motion to dismiss denied. Defendant directed to serve and file answer within 40 days of the filing date of this decision. Time period - albeit a somewhat broad one - for various alleged wrongs is set forth in the claim that for these preliminary purposes suffices to give court jurisdiction over alleged negligent acts occurring within ninety (90) days of the service of the claim upon the Attorney General’s office. Since a continuing wrong is alleged, claimant’s submission of his ambulatory health records showing treatment satisfies the court that for these preliminary purposes the claim is timely commenced, and that the nature of the claim is sufficiently set forth to substantially comply with the pleading requirements of Court of Claims Act §11. Claim alleges that defendant’s agents failed to properly diagnose and treat claimant for an injury suffered to his right knee, from the date of the fall in “the spring/summer of 2005" up through and including February 1, 2007

Case Information

UID:
2007-030-557
Claimant(s):
RICHARD MADDOX
Claimant short name:
MADDOX
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113533
Motion number(s):
M-73369
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
FRANZBLAU DRATCH, P.C.BY: BRIAN M. DRATCH, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
September 5, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on defendant’s pre-answer motion to


dismiss:

1,2 Notice of Motion; Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibit

  1. Affirmation in Opposition by Brian Dratch, of counsel to Franzblau Dratch, PC attorneys for claimant and attached exhibit
  1. Filed papers: Claim
Richard Maddox alleges in his claim that defendant’s agents failed to properly diagnose and treat him for injuries suffered in a trip and fall accident that occurred on an unspecified day in “spring/summer 2005” while he was an inmate in the custody of the New York State Department of Correctional Services at Green Haven Correctional Facility. [See Claim Number 113533, ¶2]. Mr. Maddox alleges that defendant’s agents failed to properly diagnose and treat claimant for the injury he suffered to his right knee, and that he did not receive adequate medical care from the date of the fall in 2005 up through and including February 1, 2007. [Ibid. ¶¶ 2, 3, 4].

The claim was served on the Office of the Attorney General by certified mail, return receipt requested on April 4, 2007. [Affirmation by Jeane L. Strickland Smith, ¶4, Exhibit A]. Defendant seeks dismissal of the Claim because the claim - assuming a date of accrual in 2005 - is untimely. See Civil Practice Law and Rules §3211(a)(5); Court of Claims Act § 10(3). Court of Claims Act § 10(3) requires that a claim alleging inadequate medical care must be commenced within ninety (90) days of its accrual. Defendant also seeks dismissal because the claim “fails to conform to the pleading requirements of Court of Claims Act §11 which renders the claim jurisdictionally defective and warrants dismissal . . . ” [See Affirmation by Jeane L. Strickland Smith, ¶9]. Court of Claims Act §11(b) provides in pertinent part that “. . . [t]he 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 . . . ” Regulations contain further requirements. See 22 NYCRR §206.6.

A medical malpractice claim accrues on the date of the alleged wrongful act or omission. Nykorchuck v Henriques, 78 NY2d 255, 258 (1991); See Civil Practice Law and Rules §214-a. An exception to that general rule of accrual is provided by the continuous treatment doctrine, whereby the statute of limitations does not begin to run until the end of the course of treatment, so long as the treatment (or lack thereof) “. . . ‘is related to the same original condition or complaint’ (Borgia v City of New York, 12 NY2d 151, 155).” McDermott v Torre, 56 NY2d 399, 405 (1982).

The Assistant Attorney General argues in this dismissal motion that the Claimant cannot avail himself of the “continuous treatment” doctrine to stay the time within which the claim should have been served and filed based upon a continuing course of treatment related to the original medical condition. She states that the claim does not provide any information to substantiate such continuous treatment and it only alleges, very broadly, that claimant received continuous medical treatment through February 1, 2007. There is no indication as to who the medical providers were or the dates of treatment, in what facilities such treatment was received, and when claimant purportedly sought treatment for the same symptoms for over two (2) years.

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). “. . . [W]here a prison inmate is treated (or necessary treatment is omitted) by physicians in a succession of State facilities . . . ” the continuous treatment doctrine may properly be applied. Jones v State of New York, Claim No. 100743, Motion No. M-65344, UID # 2002-028-058 (Sise, J., October 21, 2002). “. . . [W]here treatment is provided by more than one physician or health care provider, the continuing treatment by one will be imputed to the other in the presence of any agency relationship, or some other relevant association which continues the nexus between the two providers . . . (citations omitted).” Ganapolskaya v V.I.P. Med. Assoc., 221 AD2d 59, 62 (1st Dept 1996), see also Robinson v State of New York, 35 AD3d 948 (3d Dept 2006); Ogle v State of New York, 142 AD2d 37, 40 (3d Dept 1988).[1].

In this case, a time period - albeit a somewhat broad one - for various alleged wrongs is set forth in the Claim that at least for these preliminary purposes suffices to give this court jurisdiction over alleged negligent acts occurring within ninety (90) days of the service of the claim upon the Attorney General’s Office on April 4, 2007. Moreover, since a continuing wrong is alleged, Claimant’s submission of his ambulatory health records showing treatment from 2005 through February 23, 2007, also marginally satisfies the court that for these preliminary purposes the claim is timely commenced, and that the nature of the claim is sufficiently set forth to substantially comply with the pleading requirements of Court of Claims Act §11. [Affirmation in Opposition by Brian Dratch, Exhibit A].

Based on the foregoing, defendant’s pre-answer motion to dismiss is in all respects denied, and Defendant is directed to serve and file its Answer within forty (40) days of the filing date of this decision.

September 5, 2007
White Plains, New York

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




[1].“ . . . [W]e conclude that the Court of Claims erred in determining that the continuos treatment doctrine applies in the instant case as a matter of law. Instead, we believe there are questions of fact which should be determined by the Court of Claims after hearing the relevant evidence . . . (citations omitted). The Court of Claims must determine whether the treatment received at Upstate was performed by health care workers who were in relevant association with the (initial treating) physician . . .(citation omitted), or whether there was a continuing relationship between claimant and the physicians at . . . [the facility] during the time claimant was treated at [outside hospitals] . . . (citation omitted) so as to form a sufficient basis for application of the continuous treatment doctrine . . . (citations omitted).”