Reply Affirmation 4
In their proposed claim, claimants seek damages for personal injuries suffered
by Arlen White based upon allegations of malpractice by medical staff and
personnel at the State University of New York Health Science Center University
Hospital (“University Hospital”). Specifically, claimants allege
that Mr. White underwent surgery for a coronary artery bypass grafting on
September 1, 2006, performed by Charles J. Lutz, M.D., and that during this
procedure Dr. Lutz improperly connected Mr. White’s left internal mammary
artery to a coronary vein, rather than the left anterior descending artery.
The initial inquiry on any application seeking permission to serve and file a
late claim is whether the application has been timely made. Pursuant to the
provisions of § 10(6) of the Court of Claims Act, the application must be
made “at any time before an action asserting a like claim against a
citizen of the state would be barred under the provisions of article two of the
civil practice law and rules.”
Pursuant to the provisions of § 214-a of the CPLR, any action based upon
allegations of medical malpractice must be commenced with two years and six
months of the act or omission constituting such malpractice. In this particular
matter, the surgery on which the claim is based took place on September 1, 2006.
This application for late claim relief was filed with the Clerk of the Court of
Claims on February 25, 2009, within (barely) two years and six months of that
surgery. The statutory reference to Article 2 of the CPLR set forth in §
10(6) of the Court of Claims Act has been interpreted to mean that the motion
must be made prior to the expiration of the appropriate statute of limitations,
even if the return date of the motion or the date the claim is ultimately served
and filed occurs outside of that limitations period (Thompson v State of New
York, 258 App Div 758; Johnson v State of New York, 131 Misc 2d 630;
Jenkins v State of New York, 119 Misc 2d 144). As a result, this Court
finds and concludes that the application herein has been timely made.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
therein are: (1) whether the delay in filing the claim was excusable; (2)
whether the State had notice of the essential facts constituting the claim; (3)
whether the State had an opportunity to investigate the circumstances underlying
the claim; (4) whether the claim appears meritorious; (5) whether substantial
prejudice resulted from the failure to timely file and the failure to serve upon
the Attorney General a timely claim or notice of intention to file a claim; and
(6) whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim
(Matter of Gavigan v State of New York, 176 AD2d 1117).
With regard to excuse, the only explanation provided in this application is
that claimants were never informed that a notice of intention to file a claim or
a formal claim was required in order to proceed against the State. Ignorance,
however, in and of itself is not a sufficient excuse (Sevillia v State of New
York, 91 AD2d 792), and therefore claimants have not presented an acceptable
excuse for their failure to timely serve and file this claim.
The intertwined factors of notice, opportunity to investigate, and substantial
prejudice will be considered together. Claimants contend that the State had
notice of the essential facts constituting this claim, since the alleged
malpractice occurred at University Hospital, and all aspects of the medical care
rendered to Arlen White were recorded and maintained in hospital records.
However, the mere existence of medical records does not satisfy a
claimant’s obligation to place the State on notice of the underlying facts
of a proposed claim (Conroy v State of New York, 192 Misc 2d 71), and
there is no indication in the papers before the Court that the State had any
actual notice of this claim until the instant motion was served and filed.
Without such notice, there is no evidence that the State had any opportunity to
investigate those facts.
Even though the State did not have any prior notice, nor an opportunity to
investigate the facts underlying this proposed claim, the existence of medical
records should provide the State with a sufficient basis on which to defend this
claim, and the Court finds that the State will not be substantially prejudiced
should it have to defend this claim.
The next factor, often deemed the most critical, is whether the proposed claim
has the appearance of merit. If claimants cannot establish a meritorious claim,
it would be an exercise in futility to grant a late claim application (Savino
v State of New York, 199 AD2d 254; Prusack v State of New York, 117
AD2d 729). In order to establish a meritorious cause of action, claimants have
the burden to show that the proposed claim is not patently groundless,
frivolous, or legally defective, and that there is reasonable cause to believe
that a valid claim exists (Matter of Santana v New York State Thruway
Authority, 92 Misc 2d 1).
In an application seeking permission to file a late claim based upon
allegations of medical malpractice, support in the form of an expert’s
affidavit of merit is generally required, since it is only through an affidavit
from someone with the qualifications to allege a deviation from generally
accepted medical standards that the Court may determine the potential merit of a
proposed claim (Schreck v State of New York
, 81 AD2d 882; Jolley v
State of New York
, 106 Misc 2d 550). In support of this application,
claimants’ attorney has affirmed that the medical records of Mr. White
were reviewed by a Board-Certified cardiac surgeon and that this surgeon opined
that the case is meritorious, essentially setting forth information as is
usually contained in a CPLR 3012-a certificate of merit. However, a certificate
alone is insufficient to demonstrate merit for the purposes of § 10(6)
(Peralta v State of New York
, Ct Cl, September 6, 2005, Motion No.
M-70200, Schweitzer, J., UID No.
, and this Court finds that the
language contained in the Affirmation of claimants’ attorney is similarly
insufficient, in and of itself, to establish the appearance of merit.
Claimants, however, have also submitted medical records and progress notes of
Dr. Lutz (Exhibits A-C to Items 1, 2). In certain limited cases, medical
records have been found to be sufficient to establish the appearance of
malpractice, even without a supporting medical affidavit (Caracci v State of
New York, 178 AD2d 876; DePaolo v State of New York, 99 AD2d 762).
In the instant case, the Court has reviewed the submitted medical records, and
based on this review, finds that claimants have sufficiently established the
alleged acts of malpractice set forth in their proposed claim to satisfy the
minimal requirements of Santana.
It appears to the Court that claimants may have another available remedy in
State Supreme Court, presumably against the physician or physicians who
allegedly committed the medical malpractice.
The Court may in its discretion place as much or as little weight on any of the
six factors to be considered pursuant to the statute. Under the current law
"[n]othing in the statute makes the presence or absence of any one factor
determinative" (Bay Terrace Coop. Section IV v New York State Employees'
Retirement System Policemen's & Firemen's Retirement System, 55 NY2d
979, 981) and none of the factors can require denial as a matter of law.
Based upon the foregoing, and after weighing and considering all of the factors
set forth under Court of Claims Act § 10(6), it is the opinion of this
Court that claimants should be allowed to serve and file their proposed claim.
Therefore it is
ORDERED, that Motion No. M-76296 is hereby GRANTED; and claimants are directed
to serve and file their proposed claim, properly verified, within 45 days from
the date of filing of this decision and order in the Clerk’s office, with
such service and filing to be in accordance with the Court of Claims Act, with
particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the
Court of Claims.