New York State Court of Claims

New York State Court of Claims

R v. THE STATE OF NEW YORK, #2009-030-544, , Motion No. M-76857


Late claim motion denied. No appearance of merit to medical malpractice cause of action premised on lack of informed consent as to biopsy procedure. No medical expert. No appearance of merit to negligence cause of action claiming psychological harm.

Case Information

M. R.
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:
July 29, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for permission to

serve and file a late claim brought pursuant to Court of Claims Act §10(6):

1,2 Motion for Permission to File a Late Claim dated October 2, 2007 by M. R., claimant; Motion for Permission to File a Late Claim dated September 17, 2007 by M. R. and attached papers

  1. Affirmation in Opposition by Elyse J. Angelico, Assistant Attorney General, and attached exhibit
M. R., a former inmate proceeding pro se, alleges in her proposed claim that during her incarceration at Taconic Correctional Facility [Taconic] on April 17, 2007 medical personnel suggested a needle biopsy procedure to her breast because of a suspicious nodule detected during an earlier mammogram, which she initially refused, but then agreed to undergo with harmful consequences. She claims she was assured by the facility physician that the procedure would not be in an operating room, that it would be brief, and that the breast would be numbed.

When she was taken to Mount Vernon Medical Hospital [Mount Vernon] on April 27, 2007 for the procedure, she signed a medical consent form there, which is attached to her moving papers. [See Permission for Operative And/Or Diagnostic Procedure And/Or Treatment dated April 27, 2007]. She asserts she was then walked - while wearing a hospital gown, State issue boots and shackles - to an elevator and through a floor where male inmates and officers were in the vicinity, and was affected psychologically because of a history of prior sexual abuse. Thereafter, she was brought into a room with a mammogram machine and suffered a painful mammogram. When the biopsy was performed, she states that her breast was not numbed as promised. She also asserts that the nurse got blood on her. After the hour-long process, she was escorted back to the original room at approximately 10:00 a.m. through the same humiliating area.

Once in the room she was brought to an operating room and apparently received anesthesia, and later woke up to learn that a mass had been removed surgically. She was released from Mount Vernon at approximately 5:00 p.m., and taken to Bedford Hills Correctional Facility [Bedford Hills] infirmary.

She remained at Bedford Hills from April 27, 2007 through April 30, 2007, but did not receive her regular prescription medication during that time, because, she alleges, Taconic failed to send her medical information sheet to Bedford Hills. On April 30, 2007 she returned to Taconic.

At Taconic, she was seen in the medical clinic on May 3, 2007 for follow-up care with the physician who originally had spoken to her about the need for a biopsy. When the bandage was removed, a two-inch scar remained and claimant suffered substantial pain due to the “unneeded surgery that [she] never consented to.” [Proposed Claim, Page 4 (unnumbered)]. She was placed on “light duty medical, from May 3, 2007 until August 17, 2007.” [Ibid.]

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated 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 serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; 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. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

A copy of the proposed claim[1], must accompany the motion, allowing the Court to ascertain the nature of the claim, including the date of accrual. See Court of Claims Act §11-b; 22 NYCRR §206.6.

Additionally, a motion is “made when a notice of the motion . . . is served.” Civil Practice Law and Rules §2211; see also Jenkins v State of New York, 119 Misc 2d 144, 145 (Ct Cl 1983). A late claim motion must be timely brought in order to allow that a late claim be filed

“ . . . 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 . . .” Court of Claims Act § 10(6). Here, the applicable statute of limitations - assuming a medical malpractice claim - is two and one-half (2 ½ ) years. Civil Practice Law and Rules §214-a. As a negligence claim the statute of limitations for a like citizen would be three (3) years. See Civil Practice Law and Rules §214(5). The date of accrual alleged is April 17, 2007 thus the motion is timely.

Ms. R. states that the delay is excusable because she did not have legal counsel, was in the process of learning her rights as a patient, was recovering from the alleged malpractice and was unable to get to the facility law library to execute the claim. She also asserts that the State had notice because medical personnel were aware of her painful situation during her stay in the facility infirmary, and had an opportunity to investigate. She states she has no other available remedy.

Her asserted lack of knowledge of the law or difficulty in obtaining representation by counsel or otherwise conferring with counsel, does not constitute a reasonable excuse. Innis v State of New York, 92 AD2d 606 (2d Dept 1983), affd 60 NY2d 654 (1983); Musto v State of New York, 156 AD2d 962 (4th Dept 1990). With respect to any asserted impairment, more than the claimant’s statement that she was recuperating and thus could not pursue her claim is required, in the form of medical records or a physician or psychiatrist’s affidavit. See Cabral v State of New York, 149 AD2d 453 (2d Dept 1989)[2]; Goldstein v State of New York, 75 AD2d 613, 614 (2d Dept 1980)[3]. While claimant has attached medical records, they do not explain how she was unable to timely serve and file a claim (especially since she was on “light duty medical”[4] during the applicable period). There must be some showing that the circumstances of her incarceration or medical condition prevented claimant from taking effective steps to perfect her claim within ninety (90) days of its accrual, or contact an attorney. Bommarito v State of New York, 35 AD2d 458, 459 (4th Dept 1971). Claimant has made no such showing, thus this factor weighs against her.

The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, also weigh against granting Claimant’s motion. It has been more than two (2) years since claimant’s pre-procedure discussion with medical personnel, and although some medical records would likely document the fact of the procedure, the gravamen of the claim relates to matters not present in any written record, thus the State’s ability to investigate is impeded to its prejudice by the passage of time alone. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two and one-half years from date of accrual). Mere residence in a correctional facility is generally insufficient to provide notice, although in certain circumstances notice may be inferred if the occurrence would be noted and investigated in the normal course. Wolf v State of New York, 140 AD2d 692 (2d Dept 1988) (accident report and State employee involved in accident); Carmen v State of New York, 49 AD2d 965, 966 (3d Dept 1975) (police accident report and internal memoranda); Turner v State of New York, 40 AD2d 923 (3d Dept 1972) (not enough that State maintains facility). On balance, these factors weigh against granting the motion.

As to alternate remedies, claimant may have a cause of action against Mount Vernon and any medical personnel there as well.

The appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim. A claim appears to be “meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit.

Significantly, when the proposed claim asserts a cause of action requiring an expert opinion in order to be established, an affidavit of merit from a qualified expert should be included with the application. Matter of Perez v State of New York, 293 AD2d 918 (3d Dept 2002)[5]; Schreck v State of New York, 81 AD2d 882 (2d Dept 1981)[6]; Favicchio v State of New York, 144 Misc 2d 212, 214 (Ct Cl 1989)[7]; Jolley v State of New York, 106 Misc 2d 550, 551-552 (Ct Cl 1980)[8]; but cf. DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984).[9]

In a medical malpractice claim, the claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept 1976), lv denied 40 NY2d 804 (1976).

With regard to the aspect of the claim that appears to be asserting that claimant was treated in the absence of informed consent or that the advice given by medical personnel at Taconic prior to her procedure at Mount Vernon was faulty, the factors necessary to sustain such a cause of action are set forth at Public Health Law §2805-d. See Knapp v State of New York, UID # 2006-028-011, Claim No. 106438 (Sise, P.J., April 13, 2006), citing Benfer v Sachs, 3 AD3d 781,782-783 (3d Dept 2004); Jolly v Russell, 203 AD2d 527, 528-529 (2d Dept 1994). The statute requires that a claimant show that the medical practitioner failed to disclose alternatives and the risks associated with stated alternatives for a proposed course of treatment. A “reasonableness” standard is imposed, in that the initial question is what would the reasonable professional advise as to the “reasonably foreseeable risks and benefits . . . ” to a proposed course of treatment. [Public Health Law §2805-d(1)]. A claimant must also establish that “. . . a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought.” [Public Health Law §2805-d(3)].

Even taking claimant’s declarations at their face value that she was somehow unaware of different courses of treatment and their consequences, or would have preferred not to undergo a procedure that turned out to be more painful than she was expecting, she has not established that a reasonably prudent person in her position would not opt to go forward, or that her present condition was proximately caused by the course of treatment, as opposed to, for example, a disease process. Medical expert testimony as to alternatives and consequences, and exactly what information is reasonably disclosed to a patient, would be necessary as well.

In this case, only the unsupported assertions of the claimant have been submitted in support of any claim of malpractice. No competent affidavit, by a treating physician or an expert witness whose opinion was based upon the available medical records, has been submitted to support the allegation of medical malpractice, including any lack of informed consent. Merely attaching some medical records without an explanation from a qualified expert opining that the required causation is present, does not establish the appearance of merit. See Matter of Perez v State of New York, supra.

Alternatively, to establish negligence the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence. While it appears that under an objective standard a patient taken through a public area wearing a hospital gown, State issue boots, and shackles might certainly be embarrassed, it is not foreseeable that actionable psychological harm would result under such circumstances, nor has claimant established such harm by submission of an expert psychiatric affidavit or other objective support to show the appearance of merit.

“[W]hen the excuse offered for the delay is inadequate and the proposed claim is of questionable merit . . . (citations omitted)” the Court appropriately exercises its discretion to deny an application for late claim relief. Matter of Perez v State of New York, supra, at 919; see also Matter of Gonzalez v State of New York, 299 AD2d 675 (3d Dept 2002).

Based on the foregoing, the Court finds that the balance of factors weigh against granting the application, and claimant’s motion for permission to serve and file a late claim is in all respects DENIED.

July 29, 2009
White Plains, New York

Judge of the Court of Claims

[1]. Court of Claims Act § 10(6) states in pertinent part: “. . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . .”
[2]. “The only excuse offered in support of the contention that the delay was excusable was a conclusory assertion by the claimant’s counsel, unsupported by a physician’s affidavit, that the claimant’s alleged hospitalization at some undisclosed time delayed her from contacting an attorney, and that the claimant had no knowledge of the 90-day statutory filing requirement.”
[3]. “Although claimant alleged she was either hospitalized or convalescing for the entire period during which she could have timely filed the claim, such alleged incapacity is inadequate as an excuse for late filing without either a physician’s affidavit or hospital records . . . (citation omitted).”
[4]. See Proposed Claim, Page 4 (unnumbered).
[5]. In proposed claim alleging that the misdiagnosis and inadequate treatment of a cancerous ulceration on his leg resulted in deformity and permanent injury, medical records alone insufficient in support of late claim motion. Expert medical evidence was required to show that the alleged inadequate treatment of ulcer was inadequate in the first instance, and that the ulcer was cancerous when examined, and how such failures are linked to the damages suffered.
[6]. Court of Claims abused discretion in allowing late claim to be filed in claim alleging medical malpractice where no affidavit by medical expert causally linking birth of brain damaged child to asserted malpractice submitted.
[7]. Opinion by medical expert without underlying basis for it - in this case the medical records the physician indicated he had reviewed - insufficient to establish appearance of merit in late claim motion.
[8]. An attorney’s affirmation by one experienced in medical malpractice litigation is not competent to establish the appearance of merit in application to file late claim alleging medical malpractice. Court did not rely on any other late claim factors in making determination to deny motion.
[9]. Denial of inmate’s motion to file late claim abuse of discretion where medical records furnished established that he suffered from the medical conditions that the Motrin packaging literature advised precluded prescription of the drug, in a claim alleging medical malpractice based upon physician’s allegedly improper direction that inmate take Motrin. No medical affidavit needed to be furnished under these circumstances.