New York State Court of Claims

New York State Court of Claims

KROEMER v. THE STATE OF NEW YORK, #2007-031-027, Claim No. 104047, Motion No. M-72897


Claimant failed to rebut Defendant’s showing that the medical care Claimant received did not deviate from contemporary community standards. Claim is dismissed

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:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 23, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


In addition to hearing oral argument on February 28, 2007, the following papers, numbered 1 through 9, were read on motion by Defendant requesting dismissal of the claim:
1) Notice of Motion, filed January 31, 2007;
  1. Affirmation of James L. Gelormini, Esq., dated January 30, 2007, with attached exhibits;
3) Affirmation of John Howard, M.D., dated January 29, 2007 with attached exhibit;
4) Defendant’s Memorandum of Law, dated January 30, 2007;
5) Affidavit in Opposition of Kent A. Kroemer, sworn to February 12, 2007, with attached exhibits;
6) Affirmation of Qutubuddin Dar, M.D., dated February 22, 2007;
7) Reply Affirmation of James L. Gelormini, Esq., dated February 23, 2007;
8) Defendant’s Reply Memorandum of Law, dated February 23, 2007;
9) Sur-Reply Affidavit of Kent A. Kroemer, sworn to February 27, 2007. BACKGROUND

This is Defendant’s motion seeking dismissal of the claim as untimely, as well as summary judgment dismissing the claim on the merits. In his underlying amended claim, filed on April 25, 2001, Claimant, Kent A. Kroemer, alleges a cause of action for medical malpractice relating to Defendant’s alleged failure to diagnose and treat Claimant’s Lyme disease. According to Claimant, he was bitten by a tick while doing yoga in the recreation yard at Groveland Correctional Facility (“Groveland”) in April of 2000. Shortly thereafter, he began suffering from symptoms that he believed were consistent with Lyme disease.

Beginning in approximately mid-May of 2000, Mr. Kroemer sought treatment from the doctors employed by the State at Groveland. According to Claimant, his symptoms included: a rash near the site of the bite; migrating joint pain; swollen lymph nodes; dizziness and chest pain. At Groveland, Claimant was seen by Dr. Qutubuddin Dar and Dr. John Howard and he was, in fact, tested for Lyme disease. That test came back negative on June 15, 2000 (Exhibit 1). Claimant apparently does not dispute the results of that test, nor does he allege that the test was in any way improperly conducted.

The results of the test notwithstanding, Claimant continued to seek medical treatment for the symptoms of what he believed to be Lyme disease and, according to Claimant, such specified treatment was refused. Claimant was tested again for Lyme disease on July 14, 2000. This test was also negative. Finally, after being otherwise unable to adequately explain, at least to Claimant’s satisfaction, the etiology of Claimant’s symptoms, Drs. Dar and Howard referred Claimant to outside specialists in infectious diseases. Accordingly, on August 4, 2000, Claimant was sent to Strong Memorial Hospital (“Strong”), where he consulted with two specialists in infectious diseases, Drs. Susan Cohn and Bogdan Neughebauer. After what appears to be an exhaustive study, the specialists at Strong also determined that Claimant “does not have and did not have Lyme disease” and that he did not need “antibiotic treatment pertinent for Lyme disease at this moment” (Howard Affirm., Exhibit 1, p. 3). Drs. Cohn and Neughebauer went on to recommend that Claimant be sent to specialists in orthopedics and neurology. Defendant did send Mr. Kroemer for consultations with a neurologist and an orthopedist in October of 2000. He was started on antibiotics on October 20, 2000, after those consultations.

Claimant tested negative for Lyme disease again on November 1, 2000. He had a fourth Lyme disease test on November 29, 2000. He was evaluated again by the infectious disease specialists at Strong in February of 2001. With regard to the fourth Lyme disease test taken on November 29, 2001, Claimant asserts that this test came back positive. He does, however, concede that such tests are complicated and difficult to evaluate. The experts at Strong had a different take on this test saying: “the test done on 11/29/00 was negative as well as long there [sic] was no fourfold increase in the titer as compared to the previous ones form [sic] June-July 2000. Therefore, there was no ‘positive test for Lyme’ as initially appreciated by other physicians and the patient” (Howard Aff., Exhibit 1, p. 9).
I will first address Defendant’s contention that the claim should be dismissed as untimely. Pursuant to Court of Claims Act § 10(3), a claim for personal injuries resulting from the negligence or unintentional tort of an agent of Defendant, such as is alleged here, must be filed within 90 days unless Claimant has served a notice of intention to file a claim. As stated above, Claimant served a notice of intention to file a claim on January 16, 2001. Defendant correctly points out that all of the events which form the basis of Claimant’s cause of action occurred more than 90 days before service of the notice of intention. Accordingly, unless the continuous treatment doctrine applies, the claim is untimely and must be dismissed.

Initially, I note that it is Claimant’s burden to demonstrate the applicability of the continuous treatment doctrine (Blythe v City of New York, 119 AD2d 615). CPLR 214-a provides that actions for medical or other malpractice must be commenced within two years and six months of the act, omission or failure complained of “or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure.” In such instances, the running of the statute of limitations tolled until the date of the last treatment (McDermott v Torre, 56 NY2d 399; Borgia v City of New York, 12 NY2d 151). This toll applies to the filing requirements in the Court of Claims as well (Ogle v State of New York, 142 AD2d 37).

However, the continuous treatment doctrine does not apply if Claimant cannot establish a continuing course of treatment for the condition underlying his cause of action (Schreiber v Zimmer, 17 AD3d 342). As stated above, Claimant tested negative and was not treated for Lyme disease. Defendant, citing Young v New York City Health & Hosps. Corp. (91 NY2d 291) and Nykorchuck v Henriques (78 NY2d 255), argues that the continuous treatment doctrine should not be applied in this instance as Claimant has failed to indicate any course of treatment. I find, however, that this case is more similar to Couch v County of Suffolk (296 AD2d 194), in which the continuous treatment doctrine was found to apply in an instance where the defendant had failed to diagnose and treat the plaintiff’s Lyme disease. Here, as in Couch, although there was no course of treatment established for Lyme disease, Mr. Kroemer did seek treatment on numerous occasions relating to the same “core group of conditions and complaints” for which he now seeks redress (Couch, supra, at 196).

Defendant also points out that Claimant “retained an attorney to discuss his case with the Groveland Correctional Facility physicians who were evaluating him and that attorney called Groveland physician Dar to discuss claimant’s case” (Gelormini Reply Affirm., par. 22). Defendant argues that the continuous treatment doctrine should not apply in this instance because, by retaining an attorney to contact Groveland, Claimant severed the relationship of trust with his doctors.

One of the purposes of the tolling effect of CPLR § 214-a was to not interrupt or affect the quality of treatment a patient might receive from a doctor by filing a lawsuit against him while still under his care (Massie v Crawford, 78 NY2d 516, 519; Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 338-39). However, in the past, this argument for withholding the CPLR § 214-a toll has been used only when a patient has overtly renounced trust or confidence in their doctor. For example, in Coyne v Bersani (61 NY2d 939), the doctrine was found inapplicable when the doctor had to surrender medical records to other physicians from whom the patient had independently sought medical advice. The court emphasized that since “one of the predicates” for applying the doctrine was that the patient show “continuing trust” in their doctor, its use was unnecessary when the patient’s actions did not show such “confidence” (Coyne v Bersani, supra, at 940). Here, although an attorney did contact the Groveland physicians, that attorney was Claimant’s sister. Moreover, no legal process was commenced until Claimant initiated this claim pro se. As Claimant continued to consult with the health care providers at Groveland, I cannot say at this time that the relationship of trust had been severed by the call from Claimant’s sister. Accordingly, it appears from the papers before me that there is at least a question of fact as to whether or not the continuous treatment doctrine applies and I cannot, at this time, dismiss the claim as untimely.
Medical Malpractice
Interestingly, not only does Defendant argue that it did not fail to properly diagnose and treat Claimant’s Lyme disease, Defendant maintains that Claimant never had and was never diagnosed with Lyme disease. Defendant also maintains that, although Claimant was tested for Lyme disease on four separate occasions (because of Claimant’s insistence), those tests were consistently negative. Further, as Claimant continued to complain to Defendant about the symptoms from which he was suffering and as he sincerely believed that he had contracted Lyme disease, the doctors treating him at Groveland arranged for Claimant to be seen by infectious disease specialists at Strong. Those doctors painstakingly reviewed Claimant’s case and they, too, determined that Claimant did not suffer from Lyme disease.

Defendant seeks summary judgment for several reasons. First, as Claimant did not have Lyme disease, there was no failure to properly diagnose and treat him. Second, even if Claimant did have Lyme disease, he was sent by the general practitioners employed by Defendant to specialists in the field of infectious diseases. Those specialists also determined that Claimant did not have Lyme disease and Defendant’s employees were entitled to rely on the opinions of the experts. To the extent that the specialists committed malpractice, Defendant argues that, because those doctors are not employees of Defendant and are outside of their control, Defendant cannot be held liable for their malpractice.

In any application for summary judgment, the moving party bears a heavy burden in establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).

Defendant has submitted the affirmations of both Dr. Dar and Dr. Howard. Both affirmations review the course of Claimant’s treatment and sufficiently demonstrate that the care provided to Claimant did not deviate from community standards. In addition, Defendant has submitted Claimant’s medical records concerning his care and treatment relating to this action. I find that Defendant’s submissions indicate that, not only was the care Claimant received adequate, but that Claimant actually received care above and beyond that which was required. Specifically, Defendant points out that Defendant continued to test Claimant for Lyme disease, even when the experts indicated that Claimant did not even meet the pre-test criteria. Nonetheless, the doctors employed by Groveland continued to send Claimant to outside specialists. In fact, despite Claimant’s consistently negative test results, in October of 2000 Defendant began treating Claimant with a course of antibiotics to treat Lyme disease. I note that this was done after Claimant had consulted with specialists in the fields of orthopedics and neurology. This is significant because Claimant’s primary complaint relating to the care provided by Defendant is, basically, that he was not treated with antibiotics earlier (see Defendant’s Exhibit B [Claimant’s Amended Bill of Particulars], par. 16). However, as the infectious disease specialists Drs. Cohn and Neughebauer point out in their February 9, 2001 report, it was important to have further consultations and rule out other possible causes of Claimant’s symptoms prior to simply placing Claimant on a course of antibiotics (Howard Affirm., Exhibit 1, p. 6). I find, therefore, that Defendant has met it burden of demonstrating that the treatment Claimant received did not deviate from the required standard of care.

When the moving party has successfully met its burden, the party who opposes a summary judgment motion must "assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [pleading] are real and are capable of being established upon a trial" (Di Sabato v Soffes, 9 AD2d 297 at 301, appeal dismissed, 11 AD2d 660). “Bald, conclusory assertions” (Ehrlich v American Moninger Greenhouse Manufacturing Corp., 26 NY2d 255, 259) and the “shadowy semblance of an issue” cannot, by themselves, defeat a motion for summary judgment (Di Sabato v Soffes, supra, at 300).

Despite performing admirably at oral argument, especially for a layman, Claimant has failed to come forward with competent expert evidence that would controvert Defendant’s showing. Claimant did argue that Defendant failed to indicate to the specialists to whom he was sent that he suffered from a second degree AV heart block. Claimant maintained that this demonstrated malpractice and that, while a first degree AV heart block could have been the result of other factors, the second degree AV heart block confirmed that he had Lyme disease as early as July of 2000. Claimant suggested that, had the specialists possessed this information, their reports and opinions might have been different.

However, Defendant demonstrated that this information was passed on to and reviewed by the specialists at Strong and that they determined that this could not have been related to Lyme disease. Even with this information, the infectious disease specialists at Strong determined that Claimant did not have and never did have Lyme disease.

In this matter, Claimant is required to demonstrate, with expert testimony, how Defendant deviated from the accepted standard of care and how this deviation caused injury to Claimant. Claimant has failed to provide this necessary expert opinion. Because his claim involves the appropriate level of patient care and the exercise of professional judgment, I cannot accept Claimant’s own statement that the level of care afforded him was inadequate as the basis for a cause of action sounding in medical malpractice (see Twitchell v MacKay, 78 AD2d 125; Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804; see also Morgan v State of New York, 40 AD2d 891 [expert medical testimony required to establish malpractice involving patient care]). Claimant’s failure to provide such expert testimony is fatal to his claim for malpractice.

Finally, assuming arguendo that Claimant did have Lyme disease and that he should have been started on antibiotics earlier, Defendant’s doctors were entitled to rely on the contrary opinions of Drs. Cohn and Neughebauer who were experts in that field (Micciola v Sacchi, 36 AD3d 869). To the extent that Drs. Cohn and Neughebauer were negligent in the manner in which they dealt with Claimant, Defendant correctly points out that it cannot be held responsible for the actions of independent physicians (Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701).

Accordingly, it is hereby

ORDERED, that Defendant’s motion is granted in its entirety and the claim is dismissed.

May 23, 2007
Rochester, New York

Judge of the Court of Claims