New York State Court of Claims

New York State Court of Claims
GAVINS v. THE STATE OF NEW YORK, # 2009-036-547, Claim No. 114433, Motion No. M-76317, Cross-Motion No. CM-76378


Case information

UID: 2009-036-547
Claimant(s): WILLIAM L. GAVINS, as Administrator of the Estate of DENISE FORD GAVINS, deceased and WILLIAM L. GAVINS, individually
Claimant short name: GAVINS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 114433
Motion number(s): M-76317
Cross-motion number(s): CM-76378
Claimant's attorney: KELNER & KELNER, ESQS.
By: Gerard K. Ryan, Jr., Esq.
By: Alisa R. Lebensohn, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 7, 2010
City: New York
Official citation:
Appellate results:
See also (multicaptioned case)


In this medical malpractice action claimant moves to strike certain jurisdictional affirmative defenses and defendant cross-moves to dismiss the claim pursuant to CPLR 3211 and 3212 and Court of Claims Act  10 and 11. Claimant also moves for permission to file a Certificate of Merit nunc pro tunc.(1) The claim arises out of the treatment of decedent, Denise Ford Gavins, at University Hospital of Brooklyn/Downstate Medical Center ("Downstate") during which Downstate performed a Whipple Procedure on decedent.

The claim alleges that on May 8, 2006, doctors employed by Downstate performed the procedure and decedent "remained under the continuous post-operative care and treatment of [Downstate] . . . during her confinement at [Downstate] from May 8, 2006 through and including May 16, 2006 and thereafter through and including June 9, 2006, date of death." Claim,  18.(2) It states:

That the medical, pre-operative, operative and post-operative care, treatment, diagnosis and services rendered by [Downstate's] agents, servants and/or employees, including but not limited to Michael Zenilman, M.D. and Corneliu Vulpe, M.D., were performed in a negligent and careless manner, not in keeping with the standards customarily employed in the community at large.

Claim,  19. The claim further alleges that decedent "was caused to suffer severe physical injury and conscious pain and suffering, including but not limited to post-operative gastrointestinal hemorrhage, hypo-perfusion, cardiac arrest, coma, neurological impairment, pain and suffering and wrongful death on June 9, 2006." Claim,  20. The claim states that decedent was discharged on May 16, 2006, but then on May 30, 2006, "was admitted to the emergency room of Downstate and came under the care of Richard Sinert, D.O., N. Mehta, M.D., 'John' Kalu, M.D. and Michael Zenilman, M.D." and the "emergency room care, treatment, diagnosis and services rendered by [Downstate's] agents, servants and/or employees, including but not limited to [these named individuals], were performed in a negligent and careless manner, not in keeping with the standards customarily employed in the community at large." Claim,  30-31. This May 30, 2006 emergency room treatment allegedly caused the same injuries and pain and suffering previously alleged in paragraph 20 of the claim, supra. Compare Claim,  20 and 32.

Based on these allegations, the claim pleads four causes of action: decedent's pain and suffering (Claim,  1-35); lack of informed consent (Id.,  36-39);(3) decedent's wrongful death (Id.,  40-43); and claimant's loss of consortium (Id.,  44-48).

A Notice of Intention to Make Claim verified August 10, 2006 was timely served, and an Amended Notice of Intention was served on or about September 21, 2006. The claim itself was served on October 29, 2007 and filed on October 31, 2007 and defendant answered on December 10, 2007. The answer pleads, inter alia, the following affirmative defenses which claimant has moved to strike:

The claim fails to comply with Court of Claims Act Section 11 by failing to include sufficient particularization of the State's conduct as it regards the incident, and therefore, there is no proper claim over which the Court has jurisdiction.

The claim fails to comply with Court of Claims Act Section 11 by failing to include sufficient particularization of the nature of the incident alleged in the claim and the manner in which it occurred, and therefore, there is no proper claim over which the Court has jurisdiction.

Affirmation in Support, Ex. D,  17 and 25. Defendant's cross-motion to dismiss the claim argues that the "inherent complexity of medical malpractice lawsuits, and the necessity of expert witnesses, typically in multiple specialties to evaluate both the record of treatment and the allegations of improper care" mandate that the allegations of malpractice be pleaded with specificity, which defendant contends "are insufficient to constitute a cause of action under Section 11 (b) of the Court of Claims Act and prevailing case law." Affirmation of Alisa R. Lebensohn, dated March 9, 2009 ("Opposing Affirmation"),  21-22. Defendant elaborates:

Not to be minimized is the fact that the claim encompasses four weeks of treatment, both in and out of the hospital, portions of which encompassed 24 hours per day of medical care by multiple doctors, nurses, and support staff. By asserting solely that defendants were "negligent", claimant in essence has called into question the propriety of each and every act and/or omission by the defendants in a four week period. It is entirely unreasonable to assign defendant with the burden of investigating each and every act (and to speculate on what omissions claimant contemplates) over a four week period.

Id.,  23.

Defendant cites a Court of Claims decision, Mano v State of New York, Claim No. 109737, M-69717 (Ct Cl, Scuccimarra, J. 2005), where the court dismissed a malpractice claim brought in 2004 alleging Downstate was liable for malpractice in connection with the delivery of an infant claimant ten years earlier. The court there summarized the claim it found to be deficient as follows:

The claim herein alleges that the mother of the infant claimant was provided with prenatal care "commencing on or about March 5, 1994"; that she was admitted to Downstate Medical Center on or about August 18, 1994; that the infant claimant was delivered on August 18, 1994; and that "as a result of the foregoing, including the medical diagnosis, care and treatment during the prenatal, labor, delivery and perinatal periods, the infant claimant sustained severe injuries and complications." That is the sum total of the allegations concerning medical malpractice.

Claimant counters with cites to Condolff v State of New York, 18 AD3d 797 (2d Dept 2005); Hamilton v State of New York, 11 Misc 3d 650 (Ct Cl 2005); Peart v State of New York, 10 Misc 3d 1070(A) (Ct Cl 2005); Browne v State of New York, 16 Misc 3d 902 (Ct Cl 2007); and Caggiano v State of New York, 23 Misc 3d 1130(A) (Ct Cl 2009), all of which upheld claims in the face of the State's contention that they lacked sufficient specificity to comply with Court of Claims Act  11 (b). The court notes that a significant difference between this case and Mano is that the claim here involves events that happened within ninety days of defendant first having received notice of claimant's intent to file a claim as opposed to the ten-year gap between the alleged malpractice and the notice in Mano. The situation here is more akin to that in Condolff (where the Appellate Division, Second Department upheld a similarly general allegation of malpractice involving a State hospital during the course of claimant's hospitalization from July 11, 2002 through July 25, 2002); and also Browne (where a general claim of lack of due care in a malpractice claim involving multiple surgeries on claimant's left leg performed between December 3, 2001 and February 2002 was sustained).

Section 11 (b) provides that "the claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed . . ." The guiding principle behind this provision is to require a sufficiently detailed description of the particulars of the claim to enable the State to investigate and promptly ascertain the existence and extent of its liability. Lepkowski v State of New York, 1 NY3d 201, 207 (2003); Sinski v State of New York, 265 AD2d 319 (2d Dept 1999). Defendant argues claimant has not provided sufficient particulars to permit it to conduct an investigation and promptly ascertain whether liability exists and, if so, its extent.

The claim here does identify the medical procedure performed at Downstate, i.e. the Whipple Procedure, and the names of the doctors involved, and also provides a span of times when decedent was admitted and/or presented at Downstate. Although it does not state what allegedly was done in a "negligent and careless manner," nor how what was done caused her pain and suffering, and, ultimately, her death, it does allege a progressive succession of specific post-operative complications that befell decedent, culminating in her death on June 9, i.e. gastrointestinal hemorrhage, hypo-perfusion, cardiac arrest, coma, neurological impairment and death. The court, applying the Appellate Division's ruling in Sinski, concludes there is sufficient information in the notices of intent and the claim itself to enable defendant to conduct an investigation of the remaining three causes of action. Defendant can review its records for the periods covered by the alleged dates of care, particularly the time between May 8, 2006 and May 16, 2006 when the decedent allegedly was admitted at Downstate and the Whipple Procedure was performed, and the May 30, 2006 date when decedent last sought emergency care at Downstate. While it appears from claimant's affirmation in opposition to defendant's cross-motion ( 4-5) that, thereafter and until her death, decedent was under the care of Kings County Hospital, the reasonable inference from the claim is that defendant's alleged negligence in performing the Whipple Procedure and in its post-operative care contributed to the cause of her death. That these allegations will require elaboration in a bill of particulars and other discovery does not mean that defendant has not been furnished with enough at the pleading stage to investigate what was known to have happened during the operation and while decedent was under the care of its specifically named doctors.

Accordingly, the court grants claimant's motion to strike the affirmative defenses to the extent they would preclude claimant from proceeding with his claims for decedent's pain and suffering, loss of consortium and wrongful death. The court denies defendant's cross-motion to dismiss the causes of action for pain and suffering, loss of consortium and wrongful death, but grants its cross-motion to dismiss the lack of informed consent cause of action which claimant has withdrawn.

Claimant also moves for an order permitting him to file a Certificate of Merit nunc pro tunc deeming it to be in compliance with CPLR 3012-a, which requires that a complaint alleging medical malpractice be accompanied by a Certificate of Merit. In support of his motion, claimant submits a Certificate of Merit, dated February 6, 2009, from an attorney for claimant stating she has consulted with a licensed physician and has concluded there is a reasonable basis for commencement of this action. See Ex. F to Affirmation in Support. A failure to timely file a Certificate of Merit is not a ground for dismissing a claim and filing a late certificate of merit is permitted. See Kolb v Strogh, 158 AD2d 15 (2d Dept 1990); Djeddah v Williams, 24 Misc 3d 1234(A) (Sup Ct, NY County, 2009). Accordingly, the court grants claimant's motion to file his Certificate of Merit nunc pro tunc.

January 7, 2010

New York, New York


Judge of the Court of Claims

1. In connection with this motion and cross-motion, the court read and considered the Notice of Motion, dated February 6, 2009; Affirmation in Support, dated February 6, 2009, together with the attached exhibits; Notice of Cross-Motion, dated March 9, 2009; Attorney Affirmation, dated March 9, 2009, together with the attached exhibits; Claimant's Affirmation in Opposition, dated October 29, 2009, together with the attached exhibits; Defendant's Reply Affirmation, dated November 18, 2009; court's letter to Alisa Lebensohn, dated November 17, 2009; and Defendant's Supplemental Affirmation, dated November 30, 2009, together with an exhibit attached thereto.

2. The claim, verified October 8, 2007, is attached as Ex. C to Affirmation in Support of Gerard K. Ryan, Jr., Esq., dated February 6, 2009 ("Affirmation in Support").

3. Claimant states that he has withdrawn this cause of action. Affirmation in Support,  10.