New York State Court of Claims

New York State Court of Claims

KLUG v. THE STATE OF NEW YORK (by and through its Agent and servant Stony Brook University Medical Center), #2008-045-031, , Motion No. M-74601


Claimant’s motion for a late claim in med. malp. claim with expert affidavit.

Case Information

In the Matter of the Application of CHRISTOPHER KLUG
Claimant short name:
Footnote (claimant name) :

THE STATE OF NEW YORK (by and through its Agent and servant Stony Brook University Medical Center)
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Amideo, Nicholas, Guzzone & Associates, P.C.By: Sara A. Toler, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Mary Y.J. Kim, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 2, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Claimant’s Notice of Motion, Affirmation in Support with annexed Exhibits A-N, Defendant’s Affirmation in Opposition with annexed documents and Claimant’s Reply Affirmation.

Claimant, Christopher Klug, has brought this motion seeking an order granting leave to file a late claim pursuant to Court of Claims Act § 10(6). Defendant, the State of New York, has opposed this application. By a Decision and Order filed February 1, 2008, this Court denied claimant’s previous motion to file a late claim primarily due to claimant’s failure to submit an expert affidavit in support of his allegations. Claimant has attempted to correct that omission by including an expert affidavit with the present motion.

Claimant alleges in his proposed claim (Cl Exh H) that on January 12, 2007, he was a patient at defendant’s facility, Stony Brook University Medical Center (Stony Brook), when he was injured while attempting to use the bathroom. Specifically he states that he was injured as a result of the malpractice and negligence of the defendant in failing to put up bed rails, properly monitor and attend to claimant’s medical condition and permitting claimant to use bathroom facilities unattended. Claimant continues that defendant failed to follow proper guidelines and medical orders for the safety and protection of claimant as a patient.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [3d Dept 2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.

Claimant does not offer any legally acceptable excuse for the delay in the filing of his claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.

The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. Claimant was initially admitted to Stony Brook on January 3, 2007 after being seriously injured in a motor vehicle accident. In the ensuing days, claimant underwent numerous operations at Stony Brook. On January 10, 2007, claimant was placed in bilateral wrist restraints after he attempted to pull out his foley catheter. Despite these restraints claimant was able to pull off his left hip dressing, foley catheter and sutures. Claimant alleges that he was then placed on a “safety watch” by his physician and that he was supposed to be monitored “as per nursing policy and protocol.” Claimant continues that on January 12, 2007 at 2:00 a.m. he slipped and fell on his left side while getting off the commode placed near the foot of his bed. Claimant contends that as a result of the fall he suffered a minimally displaced left ulna shaft fracture and a dislocation of the left hip as well as a fracture of the left hip. These injuries were subsequently treated at Stony Brook. Claimant argues that defendant had actual notice of the incident immediately after it occurred and that an investigation was conducted by defendant after the fall. Claimant points to defendant’s hospital records as evidence that the incident was documented, investigated and that claimant was treated for the injuries he sustained as a result of the fall at Stony Brook.

While it is true that defendant was not put on notice by the mere possession of the hospital records (Bucknor v New York City Health & Hosps. Corp., 44 AD3d 811 [2d Dept 2007]), defendant is not offering any specifics as to how it is or has been substantially prejudiced by the delay in filing of this claim (Barnes v New York City Hous. Auth., 262 AD2d 46 [1st Dept 1999]; Butler v Town of Smithtown, 293 AD2d 696 [2d Dept 2002]). Additionally, in the ordinary and regular course of hospital treatment and record keeping, any pertinent medical records must have been preserved for a much longer period of time than the delay here (see 10 NYCRR §§ 405.10[a][4] and 405.10[b][2][iv]). Most importantly, the medical records evince that the hospital staff was present supervising claimant at the time of the fall, the incident was documented and the medical staff treated claimant’s resulting injuries. Consequently, defendant acquired notice of the essential facts underlying the claim (Williams v Nassau County Med. Ctr., 6 NY3d 531 [2006]). Thus, after considering all the circumstances, the Court finds that these factors weigh in claimant’s favor.

The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).

In order for a claim to “appear to be meritorious”: (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists. ...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11-12 [Ct Cl 1977]).

Claimant described the circumstances surrounding his fall by stating that he recalled two female nurses helping him out of his bed and onto the commode located at the foot of his bed (Cl Exh K). “The nurses then drew the curtain and left” (Cl Exh K). He continues that when he was finished using the commode he attempted to stand but was unable to do so and fell to the ground (Cl Exh K). After the fall he noticed the “one to one” aide seated near the bed of his roommate (Cl Exh K). The “one to one” aide then helped claimant up off of the ground and into his bed (Cl Exh K). Claimant stated that as a result of the fall he sustained a fracture of his left ulna as well as an injury to his left hip (Cl Exh K).

Claimant’s fiancee, Stacy Touloumis, stated that claimant had been put on a “safety watch” at the hospital (Cl Exh L). Ms. Touloumis did not explain who actually determined that claimant should be put on a “safety watch” nor did she explain what a “safety watch” actually entails. She did advise the Court that claimant was assigned a “one to one” aide “to watch Chris at all times” and that she was informed that claimant “was not to get out of bed for any reason whatsoever” while he was in “SICU” (Cl Exh L). Ms. Touloumis did not identify who assigned the aide or who provided her with this information. Ms. Touloumis stated that on January 11, 2007 claimant was transferred from the “SICU” to a step down unit but that he was still on the “safety watch”(Cl Exh L).

Claimant’s mother, Suzanne Bannon, explained that she left claimant at the “step down unit” at Stony Brook around 11:00 p.m. on January11, 2007 (Cl Exh M). She described claimant as being disoriented at that time. She returned to the hospital the following morning at around 9:00 a.m. and noticed claimant’s left arm in a sling. Ms. Bannon recalled being told by claimant’s physical therapist that claimant had fallen during the night. However, later that morning the nurse manager, claimant’s nurse and “another woman” informed Ms. Bannon that claimant did not fall (Cl Exh M). At some point thereafter, the aide in claimant’s room admitted to Ms. Bannon that claimant had in fact fallen and that the aide had helped him back to bed. X-rays were not performed on claimant’s left arm until January 13, 2007 and new x-rays of claimant’s hip were not performed until January 14, 2007.

Claimant submits his proposed claim which provides details of the claim as follows:

“Claimant a patient with multiple injuries and head trauma while attempting to use the bathroom was caused to fall and sustain serious bodily injuries as a result of the malpractice and negligence of the defendant, STONYBROOK UNIVERSITY MEDICAL CENTER; in failing to put up bed rails, properly monitor and attend to CHRISTOPHER KLUG’S medical condition and allowing and permitting the claimant, CHRISTOPHER KLUG, to use the bathroom facilities unattended and in failing to follow proper guidelines and medical orders for the safety and protection of CHRISTOPHER KLUG as a patient. As a result of said malpractice and negligence, claimant, CHRISTOPHER KLUG sustained serious bodily injuries” (Cl Exh H).

In a Decision and Order filed February 1, 2008, this Court determined that since the claim was based on medical malpractice an expert affidavit in support of the claim was necessary for the Court to determine merit. As a result, claimant has submitted the affirmation of Paul B. Ross, M.D. with his motion.

Dr. Ross confirmed that on January 10, 2007 “claimant was placed on a safety watch pursuant to nursing/hospital protocol and was assigned a ‘one to one’ aide” (Cl Exh N). Dr. Ross stated that the specific procedures for a safety watch will vary by patient. He explained that generally “a safety watch means that the nursing staff will be close at hand, that the patient has the ability to alert the nursing staff if there is a problem and that the nursing staff will respond as quickly as possible” (Cl Exh N). He continued that sometimes “a ‘one to one’ aide is assigned to the patient to watch the patient and to assist the patient when needed. The level of training of the one to one aide varies by patient and by hospital” (Cl Exh N). Dr. Ross offered his professional opinion that Stony Brook “deviated from good and accepted standard of medical care by failing to provide an adequate safety watch, by failing to provide proper instruction and supervision of the one to one aide regarding the need to be located near the claimant’s bed at all times, by failing to provide proper instruction and supervision of the one to one aide regarding the need to assist the claimant if he took any actions on his own and by the one to tone aide failing to execute his job responsibilities” (Cl Exh N). Additionally, Dr. Ross opined that Stony Brook deviated from good and accepted standard of medical care by failing to timely acknowledge claimant’s fall, timely evaluate claimant’s injuries and timely treat claimant’s injuries. Dr. Ross determined that the aforementioned deviations were a substantial factor in causing claimant’s resulting injuries.

Claimant has set forth through the affirmation of Paul B. Ross, M.D. that defendant departed from the accepted standard of medical care, and that such a departure was a proximate cause claimant’s injuries (Steinbuch v Stern, 2 AD3d 709 [2d Dept 2003]). Accordingly, the Court finds that claimant has established, for the purposes of this motion, that his claim of medical malpractice is meritorious.

Finally, the Court notes that neither party addressed the issue of whether or not claimant had a viable remedy elsewhere. Since claimant failed to deny that an alternate remedy was available the Court determined this factor against claimant.

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act §10(6), claimant’s motion to file a late claim is granted.

Accordingly, within sixty (60) days of the date this decision and order is filed, claimant shall file and serve the proposed claim, together with a payment of the appropriate filing fee, pursuant to Court of Claims Act §§ 11 and 11-a.

July 2, 2008
Hauppauge, New York

Judge of the Court of Claims