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
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 ). 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
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] and
405.10[b][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
). 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
“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
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