New York State Court of Claims

New York State Court of Claims

GILL v. STATE OF NEW YORK, #2007-039-014, Claim No. 112745, Motion No. M-72438


Synopsis


Claimant’s allegation that defendant provided him with unnecessary medical treatment, consisting of two injections, following defendant’s false diagnosis of hepatitis B constitutes a colorable claim for medical malpractice rather than medical negligence. Court determined that continuous treatment doctrine applied where claimant received treatment for hepatitis B on several occasions following his false diagnosis and concluded that claim for medical malpractice was therefore timely. To the extent that claimant set forth a cause of action for ministerial neglect, or ordinary negligence, Court concluded that the claim was untimely as claim for ministerial neglect accrued no later than date when claimant received his first injection following defendant’s alleged faulty record keeping and consequent misdiagnosis. Court further determined that, to the extent that claimant set forth causes of action for reckless endangerment or the intentional infliction of emotional distress, the claims are not cognizable in the Court of Claims.

Case Information

UID:
2007-039-014
Claimant(s):
ANTHONY GILL
Claimant short name:
GILL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112745
Motion number(s):
M-72438
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Anthony Gill, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Heather R. RubinsteinAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 12, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The instant claim was served upon defendant on September 12, 2006. Claimant alleges therein that, during October 2005, defendant informed him that he tested positive for hepatitis B on February 24, 1998 while an inmate at Auburn Correctional Facility. Claimant asserts that he subsequently received two injections for the treatment of hepatitis B, the first of which was administered on December 16, 2005 and the second on January 31, 2006. Thereafter, on August 29, 2006, claimant contends that medical personnel at Great Meadow Correctional Facility provided him with copies of his medical records which revealed that he had in fact tested negative for hepatitis A, B and C on February 24, 1998 while confined at Clinton Correctional Facility. Claimant further alleges that on September 1, 2006 medical personnel, on behalf of defendant, informed him that a “grave error” was made and that he does not suffer from hepatitis B.

Claimant seeks redress for injuries allegedly sustained as a result of defendant’s inadequate recordkeeping, false diagnosis and consequent unnecessary medical treatment which he characterizes as claims for medical negligence, negligence and reckless endangerment. Defendant now moves for dismissal of the claim, in lieu of an answer, pursuant to CPLR 3211 on the grounds that the Court lacks subject matter and personal jurisdiction pursuant to Court of Claims Act §§ 10 and 11, and that claimant failed to state a cause of action. “[A]ccept[ing] the facts as alleged in the [claim] as true, [and] accord[ing] [claimant] the benefit of every possible favorable inference,” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see CPLR 3026), as the Court is bound to do, the Court concludes that claimant has set forth a timely claim for medical malpractice under the continuous treatment doctrine, but that the remainder of claimant’s causes of action must be dismissed.

At the outset, the Court notes that “[i]t 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” (DeJesus v State of New York, 2007 WL 805765, *2 [Ct Cl February 15, 2007], quoting Rivers v State of New York, 159 AD2d 788, 789 [1990]). “ ‘The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of facts’ ” (Glasgow v Chou, 33 AD3d 959, 961 [2006], quoting Russo v Shah, 278 AD2d 474, 475 [2000]; compare Phillips v Buffalo General Hosp., 239 NY 188 [1924] [medical negligence where patient scalded with a hot water bottle]; Dillon v Rockaway Beach Hosp., 284 NY 176 [1940] [medical negligence where electric light bulb left under the sheets]; and Coursen v New York Hospital-Cornell Med. Ctr., 114 AD2d 254, 256 [1986] [medical negligence where postoperative patient left unattended in bathroom]). “[W]hen the challenged conduct ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician,’ the claim sounds in medical malpractice rather than simple negligence” (Glasgow v Chou, supra at 961, quoting Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] [citations omitted]; see Mendelson v Clarkstown Medical Associates, P.C., 271 AD2d 584 [2000]). Here, claimant alleges, among other things, that defendant provided him with unnecessary medical treatment, consisting of two injections, following defendant’s false diagnosis of hepatitis B. Admittedly, the distinction between medical malpractice and medical negligence is often difficult to discern “[i]n that medical malpractice is simply a form of negligence, [and] no rigid analytical line separates the two” (Scott v Uljanov, 74 NY2d 673, 674-675 [1989]). However, after considering the allegations in a light most favorable to claimant, claimant in this matter relied upon a physician’s misdiagnosis and recommended course of treatment. Thus, it stands to reason that the “challenged conduct . . . ‘bears a substantial relationship to the rendition of medical treatment by a licensed physician’ ” (Glasgow v Chou, supra at 961), and “the propriety of the treatment received [may be] called into issue” (see Carter v State of New York, 11 Misc 3d 1082(A), 2006 NY Slip Op 50653(U), ***3 [Ct Cl 2006]. Accordingly, the Court finds that claimant has set forth a colorable claim for medical malpractice as he calls into question, among other things, the rendition of medical treatment (see Glasgow v Chou, supra at 961).

A cause of action for medical malpractice “must be commenced within two years and six months of the act, omission or failure complained of” (CPLR 214-a). Generally, a cause of action for medical malpractice accrues “from the date of the last act constituting the basis of the claim, and not from the date of discovery of the resulting injury” (Owen v Mackinnon, 6 AD3d 684, 685 [2004]). However, “under the ‘continuous treatment doctrine,’ a Statute of Limitations or a notice of claim period does not begin to run until ‘the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint’ ” (Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998], quoting Borgia v City of New York, 12 NY2d 151, 155 [1962]). This exception was created in recognition of the view that “it is in the patient’s best interest to continue ongoing medical treatment and . . . [that] the initial medical practitioner is in the best position to identify and correct his own malpractice” (Rosario v State of New York, 8 Misc 3d 1007(A), 2005 NY Slip Op 50981 (U), ***2 [Ct Cl 2005]). Moreover, “ ‘treatment’ does not necessarily terminate upon a patient’s last visit if further care or monitoring of the condition is ‘explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during the last visit, in conformance with the periodic appointments which characterized the treatment in the past’ ” (Young v New York City Health & Hosps. Corp., supra at 296, quoting Richardson v Orentreich, 64 NY2d 896, 898-899 [1985]).

Here, claimant alleges that he received injections for the treatment of hepatitis B on two separate occasions following his diagnosis. Both injections were part of claimant’s continued treatment for the same condition - hepatitis B. Moreover, construing the allegations of the claim in a light most favorable to claimant, it appears as though a third appointment with prison medical personnel took place on August 29, 2006 for the purpose of providing “further care or monitoring” of claimant’s hepatitis B (Young v New York City Health & Hosps. Corp., supra at 296). On this occasion, claimant avers that the third and final injection was not administered after he was informed that the medical clinic was “three months behind in providing this last injection” and, therefore, a physician would have to be consulted before the last injection was provided. Based upon the foregoing, the Court finds that, for purposes of this motion, claimant’s treatment for hepatitis B continued on August 29, 2006 and that, accordingly, his claim for medical malpractice, which was filed and served upon the Attorney General on September 12, 2006, is timely.

In contrast, to the extent that claimant sets forth a cause of action for ordinary negligence, the claim must be dismissed. In this regard, claimant alleges that defendant “fail[ed] to keep and maintain adequate and accurate medical records of claimant.” While the negligent maintenance of medical records may be “one of the acts or omissions constituting ... malpractice” (McClurg v State of New York, 204 AD2d 999, 1000 [1994]), it may also be the basis for a separate cause of action for ministerial neglect. Indeed, “the State may be found liable for ministerial neglect if its employees fail to comply with an institution’s own administrative procedures and protocols for dispensing medical care to inmates” (DeJesus v State of New York, supra at *2).

However, to the extent that claimant sets forth a separate claim for ministerial neglect, the Court finds that the claim is untimely pursuant to Court of Claims Act §§ 10 and 11 and must therefore be dismissed. The applicable Statute of Limitations of an action for ordinary negligence is three years (see CPLR 214; Jensen v City of New York, 288 AD2d 346, 347 [2001]). Such claims accrue “ ‘when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court’ ” (Blanco v American Tel. & Tel. Co., 90 NY2d 757, 767 [1997] quoting Aetna Life and Casualty Co. v Nelson, 67 NY2d 169, 175 [1986]). Generally this means that “the cause of action does not accrue until an injury is sustained” (Snyder v Town Insulation, Inc., 81 NY2d 429, 432 [1993]). Here, the claim for ministerial neglect accrued no later than December 16, 2005 when claimant received his first injection as a consequence of defendant’s alleged faulty recordkeeping and consequent misdiagnosis. Since the claim was not filed and served upon the Attorney General until September 2006, and no proof has been offered to show that a notice of intention was served, this portion of the claim must be dismissed.

To the extent that claimant alleges that defendant’s conduct constitutes reckless endangerment or the intentional infliction of emotional distress, the claims are not cognizable in this Court (see Penal Law Art 20; De Lesline v State of New York, 91 AD2d 785, 786 [1982], lv denied 58 NY2d 610 [1983]). Accordingly, this aspect of the claim must also be dismissed.

Finally, the Court is not persuaded by defendant’s argument that, in failing to establish he suffered actual harm, claimant has failed to state a cause of action for compensatory damages. “To survive a CPLR 3211 (a) (7) pre-answer dismissal motion, a pleading need only state allegations from which damages attributable to the defendant’s conduct may reasonably be inferred” (Lappin v Greenberg, 34 AD3d 277, 279 [2006]) and, here, claimant has set forth sufficient allegations to survive defendant’s challenge in this regard. This is to be distinguished from the failure to state “the total sum claimed” pursuant to Court of Claims Act § 11 (b) (see Kolnacki v State of New York, 8 NY3d 277 [2007]). Here, the sum claimed is $150,000. The Court has considered the remainder of defendant’s arguments and finds them to be without merit.

Accordingly, it is hereby ordered that M-72438 is granted in part and denied in part.


June 12, 2007
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims



Papers Considered
:
  1. Notice of Motion to Dismiss filed on October 23, 2006;
  2. Affirmation in Support of Motion to Dismiss dated October 19, 2006, with exhibit; and
  3. Affirmation in Opposition to Motion to Dismiss filed November 6, 2006.