This matter comes before the court on a motion by claimant seeking permission
to file a late claim, pursuant to Court of Claims Act Section 10 (6). The
defendant opposes the motion on the grounds that the claim is time-barred, and
that even if this application was timely made, claimant does not meet the
statutory standards for a grant of permission to file a late claim.
The underlying facts are straightforward and undisputed in this motion.
Accepting the allegations of the claim as true for purposes of this motion, on
March 31, 2003, while an inmate at the New York State Department of Correctional
Services’ Oneida Correctional Facility, claimant was screened by the
medical staff and diagnosed with “hepatitis C” (hereinafter referred
to simply as “hepatitis”). However, claimant was not informed of
the diagnosis and was thereafter released from incarceration; claimant was
subsequently re-incarcerated. In September 2006 claimant was again tested and
was at that time notified by a physician at the Groveland Correctional Facility
that he had hepatitis
. Said physician also
notified claimant of the original 2003 diagnosis. Claimant contends that
because of the negligence of the state, claimant was denied the opportunity to
receive information and timely treatment of the hepatitis.
The attorney general acknowledges that it received a Notice of Intention to
File Claim on December 14, 2006 and that the Motion for Permission to File a
Late Claim and the proposed Claim were received on January 24, 2007. It is the
contention of the defendant that the action sounds in ordinary negligence, that
it is subject to a three year statute of limitations, that the cause of action
accrued on March 31, 2003, and is therefore time-barred.
The court is in accord with the position of the defendant. Court of Claims Act
§ 10 (6) provides that a claimant who has not timely filed or served a
claim or timely served a notice of intention may nevertheless seek leave of the
court to file such claim, provided such permission is sought “at
any time before an action asserting a like claim against a citizen of the state
would be barred” under the provisions of applicable law.
In this case, the applicable time limitation would be three years from date of
accrual in the case of negligence (CPLR § 214) or two and one-half years
from the date of accrual in the case of medical malpractice (CPLR § 214-a).
This action sounds in negligence. The Court of Appeals has stated that:
[l]iability in negligence may . . . rest on some form of written
misrepresentation or nondisclosure on the part of defendant by which plaintiff
[claimant] . . . is misled, resulting in injury or damage to plaintiff
(Eiseman v State of New York, 70 NY2d 175).
As has been recently noted, an action properly sounds in “ordinary
negligence” when it seeks to hold a physician liable for “his or her
failure to communicate significant medical findings to a patient or her treating
physician” (Mosezhnik v Berenstein, 33 AD3d 895, 898; see
Playford v Phelps Memorial Hosp. Center, 254 AD2d 471; Caracci v State of
New York, 203 AD2d 842).
Moreover, the date of accrual of the negligence is the date the defendant
presumably should have disclosed the diagnosis, rather than the date of the
patient’s discovery of the diagnosis - as inequitable as this might be.
In Playford v Phelps Memorial Hospital Center, 254 AD2d 471, the
plaintiff was mistakenly told in 1992 that defendant’s tests indicated
plaintiff was HIV negative. In December 1995 plaintiff learned that she had in
fact been HIV positive, and two of her children, born after the false report,
were HIV positive. The Appellate Court stated that:
until the Legislature provides otherwise, the three-year Statute of Limitations
applicable to a “negligence” action like the one at bar, which does
not involve exposure to toxic substances (cf., CPLR 214-c),
commences to run on the date of the “occurrence” of the injury, not
the date when it was “discovered” (CPLR 214 ; see, e.g.,
Blanco v American Tel. & Tel. Co., 90 NY2d 757; Snyder v Town
Insulation, 81 NY2d 429; Jackson v L.P. Transp., 72 NY2d 975;
Thornton v Roosevelt Hosp., 47 NY2d 780).
Playford v Phelps Memorial Hospital Center,
254 AD2d 471 - 472.
Claimant would only benefit from the application of the medical malpractice
statute of limitations, which is shorter, if he were able to invoke the
exception in CPLR 214-a which provides that the time limitation is measured not
from the date of original accrual, but from the date of “last treatment
where there is continuous treatment for the same illness, injury or
condition” which gave rise to the claim. The statutory exception has no
application under the facts of this case, however. Claimant’s action is
based upon his argument that he received no treatment whatsoever during the gap
period. The Court of Appeals has addressed this fact pattern and determined
that this fact scenario is not the type that was designed to be addressed by the
continuous treatment exception to the statute:
[t]he toll of the continuous treatment doctrine was created to enforce the view
that a patient should not be required to interrupt corrective medical treatment
by a physician and undermine the continuing trust in the physician-patient
relationship in order to ensure the timeliness of a medical malpractice action
or notice of claim (citations omitted).
(Young v New York City Health & Hospitals Corp., 91 NY2d 291, 296).
The court applied this rationale to the facts of its case, involving a plaintiff
who alleged that she was not told of her breast condition and continued to treat
with her physician for other unrelated matters. The court found that
“plaintiff alleges nothing more than defendants’ failure to timely
diagnose and establish a course of treatment for her breast condition, omissions
that do not amount to a ‘course of treatment’” (Young v New
York City Health & Hospitals Corp., 91 NY2d 291, 297, citing with
favor, Nykorchuck v Henriques, 78 NY2d 255, 259).
Inasmuch as this claim is time-barred, the court need not review the statutory
standards applicable to the court’s determination of its discretionary
power to allow a late claim under Court of Claims Act § 10 (6), as this
review is moot.
The claimant’s motion is denied.