New York State Court of Claims

New York State Court of Claims

ROBERTS v. THE STATE OF NEW YORK, #2009-030-526, Claim No. 115976, Motion Nos. M-76156, CM-76330


Cross-motion to dismiss granted. Motion to strike defenses denied as moot. Claimant alleged he was negligently prescribed the pyschotropic medication Zyprexa, and suffered type 2 diabetes as a result. Various causes of action asserted, including medical malpractice premised upon a lack of informed consent and ministerial negligence. Earliest act or omission occurred in January 2006, when claimant alleges that the Zyprexa was prescribed or, at the very latest, when his type 2 diabetes was diagnosed in March or April 2007 after continued treatment for his bipolar illness with the use of Zyprexa. Claimant’s own “discovery” in October 2007 of links between Zyprexa and diabetes is not discovery CPLR for lawsuit against physician. The applicable time frames are clearly more than ninety (90) days before a notice of intention was served on January 4, 2008.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
April 27, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered[1] on claimant’s motion to strike the

affirmative defenses raised herein, and on defendant’s cross-motion to dismiss the claim:

1,2 Notice of Motion; Supporting Affidavit by Emmanuel Roberts, claimant

3,4 Notice of Cross-Motion to Dismiss; Affirmation of Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits

  1. Claimant’s Verified Reply to Defendant’s Cross-Motion to Dismiss by Emmanuel Roberts and attached exhibits
6,7 Filed papers: claim, answer

Emmanuel Roberts alleges in his claim that defendant’s agents at Fishkill Correctional Facility committed medical malpractice and/or negligence in their failure to provide adequate medical care. More specifically, Mr. Roberts alleges that he was negligently prescribed the psychtropic medication Zyprexa,[2] and was caused to suffer from type 2 diabetes as a result. Various causes of action are asserted surrounding this factual scenario, including medical malpractice premised upon a lack of informed consent and ministerial negligence.

In its answer, in addition to general denials, the defendant asserts ten affirmative defenses, including the seventh affirmative defense asserting a lack of jurisdiction premised on claimant’s failure to timely serve and file the claim.

A notice of intention to file a claim was received by the Attorney General’s Office via certified mail return receipt requested on January 4, 2008. [Affirmation by Jean L. Strickland Smith, ¶ 4. Exhibit 2]. The notice of intention provides in pertinent part:
“On or about October 15, 2007, while confined at Fishkill . . . claimant learned that ZYPREXA (Olanzapine) tablets which were prescribed for his bi-polar condition by the Defendant . . . directly injured claimant causing him to become a type 2 diabetic now required to take daily dosages of an assortment of approximately six (6) diabetic tablets as well as report daily to Fishkill’s Regional Medical Unit . . . where he is required to daily prick his finger tips with a lance to draw blood in order to monitor claimant’s glucose level . . .”

The notice of intention indicates claimant was not provided with information concerning the side effects of the medication, and thus lacked informed consent. [Ibid.].

The claim itself was served on the Office of the Attorney General by certified mail, return receipt requested on October 20, 2008. [Ibid. ¶5, Exhibit 3]. In the claim, as noted by the Assistant Attorney General, claimant mentions for the first time that the prescription for Zyprexa began in January 2006, and avows that he discovered the onset of his type 2 diabetes in March or April 2007 (nine months before the notice of intention was served). [Id.]. A date of accrual “between October 15 and November 15, 2007” is alleged, based upon his discovery that there was a connection between the Zyprexa and how he became a “permanent Type 2 diabetic.” [Ibid.].

In the claim Mr. Roberts indicates that he took Zyprexa commencing in January 2006, and was issued a “large supply” of same and “prescriptions for refills” on his release on parole on or about May 12, 2006. Claimant returned to State custody in January 2007, and was “put back on . . . Zyprexa” first at Downstate Correctional Facility, and later at Fishkill Correctional Facility upon his transfer there in February 2007. [Claim No. 115976, ¶¶ 15, 16, 19, 20]. In March or April 2007 he was diagnosed with type 2 diabetes. [Ibid.¶21]. In April or May 2007 he was taken off Zyprexa. [Ibid. ¶23]. He writes that once he no longer took Zyprexa, his “high glucose level decreased” provided he takes “large daily doses of diabetic medications.” [Ibid. ¶24].

A defense is raised in an answer to provide adequate notice to the claimant of issues of law or fact that the defendant may raise at trial or in later motion practice. Cipriano v City of New York, 96 AD2d 817 (2d Dept 1983). Indeed, Civil Practice Law and Rules §3018(b), concerning responsive pleadings, provides in pertinent part that a
“. . . party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as . . . collateral estoppel, culpable conduct . . . or statute of limitation. The application of this subdivision shall not be confined to the instances enumerated.”

A motion to dismiss such defenses may be made on the ground that “. . . a defense is not stated or has no merit.” Civil Practice Law and Rules §3211(b). Although claimant has shown in part that some of the defenses asserted in the answer lack merit or are otherwise deficient, more significantly, defendant’s cross-motion to dismiss the claim is granted, rendering claimant’s motion to strike such defenses moot.

In this regard, claimant’s reliance on Civil Practice Law and Rules §214-c as the basis for calculating when the malpractice claim against the State of New York accrued for statute of limitations purposes is misplaced. Claims premised upon medical or dental malpractice are specifically excluded from what is known as the “toxic tort” statute.[3] For accrual purposes the statute of limitations regarding medical malpractice applies. See Civil Practice Law and Rules §214-a[4].

A claim based on a medical practitioner’s failure to adequately advise a patient of reasonably foreseeable risks associated with a particular course of treatment is one for medical malpractice premised on a lack of informed consent. See Public Health Law §2805-d; Jolly v Russell, 203 AD2d 527, 528-529 (2d Dept 1994).[5] Similarly, claimant’s allegations as to a failure to perform regular blood glucose level tests in light of the prescribed medication also describe a medical malpractice cause of action.

“Public Health Law § 2805-d (1) defines lack of informed consent as the failure of the person providing the professional treatment . . . to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.” Manning v Brookhaven Memorial Hosp. Med. Ctr., 11 AD3d 518, 520 (2d Dept 2004). To recover for a lack of informed consent a claimant “must allege that the wrong complained of arose out of some affirmative violation of . . . [claimant’s] physical integrity” and further that “a reasonably prudent person in the . . . [claimant’s] position would not have undergone the treatment if he . . . had been fully informed and that the lack of consent is a proximate cause of the injury or condition for which recovery is sought.” Smith v Fields, 268 AD2d 579, 580 (2d Dept 2000); see also Iazzetta v Vicenzi, 200 AD2d 209, 212-213 (3d Dept 1994); Figueroa v Giffone, 22 Misc 3d 1118(A), Slip Copy, 2009 WL 277623 (Sup Ct, Richmond Co 2009).[6]

A cause of action for medical malpractice accrues when “the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure . . . ” occurs. Civil Practice Law and Rules §214-a.

Court of Claims Act §11(a) provides that the claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10; and that service is complete when it is received in the Attorney General’s Office. Court of Claims Act §11(a)(i). A failure to serve the claim during the time period and in the manner required results in a lack of personal jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. Court of Claims Act §11(c).[7] Court of Claims Act §10(3) requires that a claim alleging inadequate medical care must be served on defendant within ninety (90) days of its accrual. Indeed, all the causes of action asserted by claimant would require that he serve a notice of intention, or serve and file a claim, within ninety (90) days of accrual.

Here, the earliest act or omission occurred in January 2006, when claimant alleges that the Zyprexa was prescribed or, at the very latest, when his type 2 diabetes was diagnosed in March or April 2007 after continued treatment for his bipolar illness with the use of Zyprexa. Claimant’s own “discovery” in October 2007[8] of links between Zyprexa and diabetes is not the type of discovery allowing that a medical malpractice claim against the physician accrues based upon same, i.e.: discovery of a foreign object. The applicable time frames are clearly more than ninety (90) days before a notice of intention was served on January 4, 2008. As a result, the notice of intention did not operate to extend the period within which the claimant could serve and file his claim to within two (2) years of its accrual. The claim, served on October 20, 2008 and filed in the Office of the Chief Clerk of the Court of Claims on the same date is untimely. Defendant raised the defense with sufficient particularity in its answer.

Based on the foregoing, claimant has not established that he timely served the claim upon the Attorney General as required, or that he timely served a notice of intention upon the Attorney General’s Office within ninety (90) days of accrual of the claim, and the defendant has raised the jurisdictional issue both in its answer and in this cross-motion. Accordingly, claimant’s motion to strike defenses is denied as moot; defendant’s cross-motion to dismiss is in all respects granted, and Claim Number 115976 is hereby dismissed in its entirety.[9]

April 27, 2009
White Plains, New York

Judge of the Court of Claims

[1].An Addendum to Claimant’s Verified Reply to the Defendant’s Cross-Motion to Dismiss, received more than one (1) month after the return date, has not been read or considered.

[2]. Interestingly, the publicly available information concerning the potentially harmful side effects of Zyprexa primarily relates to the harm caused when it was prescribed for off-label use, and the various multi-district federal lawsuits commenced against the manufacturer Eli Lilly and Company premised in part upon deceptive marketing practices because the descriptive information the manufacturer provided suggested such off-label use. Issues surrounding the knowledge of prescribing physicians concerning the drug were also part of those lawsuits. See In re Zyprexa Products Liability Litigation, 489 F Supp 2d 230 (EDNY 2007). These actions were centralized and consolidated on April 14, 2004 by the Judicial Panel on Multi-District Litigation and transferred to the Eastern District of New York. In re Zyprexa Products Liability Litigation, 314 F Supp 2d 1380 (Jud.Pan.Mult.Lit. 2004). Prescribing Zyprexa for bipolar disorder is not an off-label use apparently, and the side effects of weight gain and diabetes among other things have been well known since at least 2004.[See “2004 Safety Alert: Zyprexa (olanzapine)”, United States Food and Drug Administration, Med Watch, March 1, 2004]. One state consumer protection case was settled in or about October, 2008. [See “33 States to get $62 Million in Zyprexa Case Settlement” by Alex Berenson,] A broader settlement of such appears near as of January 15, 2009. [See “Settlement Called Near on Zyprexa” by Gardiner Harris and Alex Berenson,].

[3]. The limitations period of three years from discovery (with some qualifying provisos) has been applied to harm resulting from exposure to toxic chemicals in the environment and the like. It is a “. . . distinct accrual mechanism, allowing individuals who allegedly discover or reasonably should have discovered toxic-tort-related injuries on or after the effective date . . . , three years from discovery to file facially timely claims (see CPLR 214[5] ).” Rothstein v Tennessee Gas Pipeline Co., 87 NY2d 90, 95 (1995). In a lawsuit against a hospital commenced in 1998 involving a tainted blood transfusion given in 1984 carrying HIV, and discovered in a subsequent positive blood test given to plaintiff in 1987, the Appellate Division approved of the trial court’s use of Civil Practice Law and Rules §214-c(2) as the “controlling Statute of Limitations . . . [finding] that the cause of action accrued in December 1987 when plaintiff was fully apprised of her HIV infection, and that the applicable three-year period for suit expired in December 1990.” Fuchs v New York Blood Center, 275 AD2d 240, 241 (1st Dept 2000) lv denied 95 NY2d 769 (2000). The Court of Appeals has held that the time in which to bring suit under Civil Practice Law and Rules §214-c begins to run from the time that an injury is discovered or should have been discovered, and not from the time that the claimant knows the connection between the injury and its cause from exposure to a toxic substance. Matter of New York County DES Litigation, 89 NY2d 506 (1997). In a claim involving plaintiff’s exposure to toxic substances at his worksite, and diagnosis of multiple myeloma, “. . . [t]he Supreme Court properly dismissed the complaint insofar as asserted by him, as the statute of limitations ran before the commencement of his action (see CPLR 214-c[2] ). Generally, in cases involving exposure to toxic substances, a plaintiff is required to commence a personal injury action within three years after he . . . discovers the injury, or within three years after, through the exercise of reasonable diligence, he . . . should have discovered the injury, whichever date occurred earlier (see CPLR 214-c[2] ). In the instant case, the plaintiff learned of his multiple myeloma diagnosis, at the very latest, in September 1997, and he had suffered from symptoms of the disease even earlier. Thus, the three-year limitations period set forth in CPLR 214-c(2) had expired before the plaintiff commenced this action in October 2000.
The Supreme Court properly denied the plaintiff’s cross motion for leave to amend his complaint to allege the applicability of CPLR 214-c(4). Under certain circumstances, CPLR 214-c(4) offers plaintiffs in toxic tort cases an alternative limitations period of one year measured from the date of discovery of the cause of the injury, where discovery of the cause of the injury occurs no later than five years after the discovery of the injury, and the plaintiffs are able to prove that ‘technical, scientific or medical knowledge and information sufficient to ascertain the cause of [the] injury had not been discovered, identified or determined prior to the expiration of the period within which the action or claim would have been authorized’ (CPLR 214-c[4] ).” Burger v Union Carbide Corp., 304 AD2d 700, 701 (2d Dept 2003) lv denied 100 NY2d 601 (2003).

[4]. Ҥ 214-a. Action for medical, dental or podiatric malpractice to be commenced within two years and six months; exceptions.
An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure; provided, however, that where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. For the purpose of this section the term ‘continuous treatment’ shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient’s condition. For the purpose of this section the term ‘foreign object’ shall not include a chemical compound, fixation device or prosthetic aid or device.”
[5]. “It is well settled that lack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence . . . (citations omitted). In creating the cause of action, the Legislature not only established the unique factual allegations which support such a cause of action, but also established equally unique defenses to liability, and placed specific limitations on the types of cases in which the cause of action may be asserted (see, Public Health Law § 2805- d).”
[6]. “. . . [T]he plaintiffs have alleged in the complaint that, inter alia, ‘the defendant failed to advise plaintiff Nereida Figueroa of the risks associated with taking Tegretol during pregnancy’. Here, the defendant Dr. Giffone has successfully established his entitlement to summary judgment as a matter of law on the informed consent cause of action . . . (citations omitted). Specifically, the defendant Dr.
Giffone has established that plaintiff, Nereida Figueroa was treated and prescribed Tegretol by a nonparty doctor for her seizure disorder and therefore, Dr. Giffone did not deviate from accepted medical standards in his treatment of plaintiff's pregnancy while on Tegretol. However, in opposition, the plaintiff has raised triable issues of fact that preclude summary judgment . . . (citations omitted). Specifically, the plaintiff established that Dr. Giffone, as the plaintiff's private attending obstetrician/gynecologist should have known of the risks associated with pregnancy while on Tegretol and advised plaintiff of those risks. Again, as a result, summary judgment is inappropriate.”
Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in [11(a)], or (iii) the verification requirements as set forth in . . . [11(b)] and [Civil Practice Law and Rules 3022] is waived unless
with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”
[8]. Indeed, even if claimant brought a toxic tort claim against the manufacturer, the “discovery” he asserts in October 2007 would not be the accrual date for purposes of the statute of limitations under Civil Practice Law and Rules §214-c.
[9]. A motion for late claim relief must be brought “ 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....” Court of Claims Act § 10(6). Presuming a malpractice cause of action, claimant still may have time to make a properly supported application for late claim relief within two and one-half years of the accrual date. See Civil Practice Law and Rules §214-a. For a negligence cause of action, a motion for late claim relief must be made within three years of accrual. Civil Practice Law and Rules §214.