New York State Court of Claims

New York State Court of Claims
GAROFOLO v. THE STATE OF NEW YORK, # 2009-044-577, Claim No. 115577, Motion No. M-77222


Court dismissed inmate's claim for medical malpractice as untimely where claimant filed an inmate grievance, thus ending the tolling of the statute of limitations due to the continuous treatment doctrine, and did not serve a notice of intention, or file and serve a claim, within the statutory period after the filing of the grievance.

Case information

UID: 2009-044-577
Claimant short name: GAROFOLO
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115577
Motion number(s): M-77222
Cross-motion number(s):
Claimant's attorney: SCHNEIDER, KAUFMAN & SHERMAN, P.C.
BY: Howard B. Sherman, Esq., of counsel
BY: James E. Shoemaker, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 18, 2009
City: Binghamton
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant filed this medical malpractice action alleging that he did not receive adequate medical care for a medical condition pertaining to his right shoulder while he was in the custody of the Department of Correctional Services (DOCS). Defendant State of New York (defendant) answered and asserted several affirmative defenses. Defendant now moves to dismiss the claim on the ground that it was untimely.(1) Claimant opposes the motion.

Claimant served a notice of intention to file a claim (Notice of Intention) on May 7, 2007. In the Notice of Intention, claimant asserted that the claim accrued in September 2002 when he initially complained of right shoulder pain at Woodbourne Correctional Facility (Woodbourne). Although he apparently had an X-ray and received pain medication, claimant continued to complain about the same right shoulder pain, and in 2004, was ultimately examined by Dr. Schwartz, an orthopedic surgeon.(2) Claimant stated that Dr. Schwartz performed a total right shoulder replacement in 2005 at Mount Vernon Hospital. Claimant continued to complain of pain and loss of strength for the next year, and Dr. Schwartz agreed that a second opinion was necessary. Claimant was then examined by Dr. Holder,(3) who performed a second surgery to repair claimant's rotator cuff, and removed bone fragments apparently remaining from the first surgery. Although he had been returned to Woodbourne after this second surgery, claimant was subsequently returned to Mount Vernon Hospital on an emergency basis to aspirate the surgical area. He had a third shoulder surgery on May 11, 2006. On December 21, 2006, claimant had another total reconstructive surgery of his right shoulder, his fourth shoulder operation while in DOCS custody.

Claimant filed Inmate Grievance Complaint No. WB-13842-07 (the Grievance) on January 22, 2007 regarding his alleged inadequate medical treatment by defendant as it pertained to his chronic shoulder problems and surgeries. Defendant argues that claimant initiated "legal process" by filing the Grievance concerning the specific medical condition at issue in this claim, and that consequently any continuous treatment tolling of the statutory limitations period must be deemed ended as of that date. Defendant further contends that both the Notice of Intention served on May 7, 2007, and this claim filed and served on July 24, 2008 are therefore untimely.(4)

Conversely, claimant argues that he did not unequivocally signal his desire to end treatment by filing the Grievance. Rather, because of his status as an inmate, it was his only option to alter or improve the medical care he was receiving. Claimant contends that filing the Grievance should not per se sever the tolling effect of the continuous treatment doctrine, especially because defendant acknowledged (as part of the Grievance determination) that the "treatment continue[d] to be ongoing."(6)

In an action to recover damages for personal injuries caused by the negligence or unintentional tort of an officer or employee of the State, such as a claim for medical malpractice, the claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act 10 [3]). The 90-day period in which to file and serve the claim or to serve the notice of intention to file a claim is tolled pursuant to the continuous treatment doctrine in a situation where the claimant has received "continuous treatment for the same illness, injury or condition which gave rise to the [alleged act of malpractice]" (CPLR 214-a; see Ogle v State of New York, 142 AD2d 37, 39 [1988]; see also Matter of Robinson v State of New York, 35 AD3d 948 [2006]). However, "[a] claimant's initiation of the legal process . . . clearly sever[s] any continuing relationship of trust in the physician-patient relationship and end[s] any 'continuous treatment tolling' at that point" (Toxey v State of New York, 279 AD2d 927, 929 [2001], lv denied 96 NY2d 711 [2001]; see also O'Connor v State of New York, 15 AD3d 827, 828 [2005], lv denied 5 NY3d 702 [2005]; Mejia v State of New York, Ct Cl, July 24, 2007, Collins, J., Claim No. 110969, Motion No. M-73247 [UID # 2007-015-216]).

As previously mentioned, claimant, who was proceeding pro se at the time, served the Notice of Intention on May 7, 2007.(7) On its face, the Notice of Intention would appear to be untimely with respect to any treatment that occurred prior to February 6, 2007, i.e., 90 days prior to service of the Notice of Intention. In order to recover for defendant's allegedly negligent treatment that took place prior to February 6, 2007, it is claimant's burden to establish that the Notice of Intention (and thus, this claim) is timely based upon the continuous treatment doctrine (Blythe v City of New York, 119 AD2d 615 [1986], lv denied 69 NY2d 604 [1987]).

Claimant stated sufficient facts in the Notice of Intention to establish that the treatment he received was related to the same original condition, and it would thus seem that the continuous treatment doctrine might apply in this situation. However, on January 22, 2007 - more than 90 days prior to serving the Notice of Intention - claimant filed the Grievance. His description of the Grievance was that it was for "[m]edical misconduct, licentiousness, and negligence."(8) Claimant further indicated that he "[had] not been afforded sufficient medical treatment by an ancillary of NYSDOCS - Mt. Vernon Hospital as well as two orthopedist [sic] surgeons (Drs. Schwartz & Holder), [who] were not proficient in Shoulder Prosthetic Device Replacement. . . [as evinced] by [claimant] undergoing 'four' surgeries, each one rectifying the prior surgery."(9) Claimant requested, as a resolution of the Grievance, that he "obtain a proffered expert Orthopedist opinion with Shoulder Prosthetic Device Replacement."(10)

The Inmate Grievance Review Committee (IGRC) noted that the Grievance itself was beyond the purview of the IGRC, but suggested that claimant be reevaluated for an expert orthopedic opinion. On the appeal, the Superintendent stated that there was no evidence of medical misconduct by the staff, noting that claimant had seen several specialists and that his treatment was ongoing. Central Office Review Committee (CORC) upheld the Superintendent's determination, with the clarification that claimant could seek another opinion pursuant to Health Services Policy # 7.2, and specifically advising him that he would have to assume financial responsibility for any outside consultation. CORC also noted that any "action taken by an entity not under the supervision of the Commissioner [of DOCS was] not within the jurisdiction of the Inmate Grievance Program."(11)

Claimant's counsel's argument - that the filing of the Grievance was not an unequivocal signal of a desire to end treatment, and thus should not per se end the tolling of the limitations period due to continuous treatment - seems compelling on its face, although it is ultimately unpersuasive. The continuous treatment doctrine "rests on the premise that it is in the patient's best interest that an ongoing course of treatment be continued, rather than interrupted by a lawsuit, because 'the doctor not only is in a position to identify and correct his or her malpractice, but is best placed to do so'" (Nykorchuck v Henriques, 78 NY2d 255, 258 [1991], quoting McDermott v Torre, 56 NY2d 399, 408 [1982]). As claimant's counsel points out, in a prison setting, an inmate has no choice regarding the provider of his medical treatment, unless he chooses (and has the wherewithal) to pay for an "outside" doctor himself. If he wants to attempt to influence or change the course of treatment he is receiving, a grievance is certainly one method toward that end, which may or may not have the result desired. Regardless of the filing of a grievance, however, under almost all circumstances the inmate will have no alternative but to continue to receive whatever treatment DOCS medical providers deem appropriate, and from whichever provider DOCS chooses. In many (if not most) cases, that provider will continue to be the same one who provided the original, allegedly inadequate, care. Consequently, that provider would have the opportunity, regardless of the commencement of legal action, to identify and correct his or her malpractice, and the ongoing course of treatment would not have been interrupted. This would seem to vitiate the argument that the continuous treatment doctrine is in the best interest of the patient by providing for ongoing treatment, at least in the circumstances of a prison facility.(12)

However, the same argument could legitimately be made with regard to the impact of serving a notice of intention to file a claim (or for that matter, even the filing and service of a claim itself). In those instances as well, an inmate will most likely continue in the same course of treatment, with the same provider. The appellate courts have found it appropriate to view the service of a notice of intention as severing any continuing relationship of trust between a medical provider and a patient, and have thus clearly ended any tolling of the limitations period due to continuous treatment at that point (see O'Connor v State of New York, supra; Toxey v State of New York, supra). The filing of a grievance with regard to alleged medical malpractice has at least the same impact upon the physician-patient relationship as the service of a notice of intention, bringing to the attention of the medical provider the inmate's dissatisfaction with the course of treatment.(13) Accordingly, this Court cannot find it inappropriate to determine that filing a grievance must end the tolling of the statute of limitations due to the continuous treatment doctrine by signaling to the medical provider the patient/inmate's dissatisfaction with the course of treatment, and the consequent collapse of whatever relationship of trust and confidence may have existed.

Therefore, the Court finds that the filing of the Grievance, which related to treatment concerning the specific medical condition as alleged in both the Notice of Intention and the claim, clearly established the end of claimant's trust and confidence in his course of treatment such that the Notice of Intention should have been timely served or the claim timely filed and served thereafter (Mejia v State of New York, supra; Watson v State of New York, Ct Cl, Hard, J., June 19, 2006, Claim No. 111107, Motion No. M-71496 [UID # 2006-032-052]). The Notice of Intention was served on May 7, 2007, more than 90 days after claimant filed the Grievance, and is thus untimely with respect to any conduct that occurred prior to February 6, 2007. Moreover, the only conduct which occurred after that date was claimant's follow-up visit to Dr. Holder on February 28, 2007 (where claimant complained of numbness, coldness, atrophy and lack of range of motion), and on April 12, 2007 (when an EMG was performed). However, claimant has not alleged any negligence with respect to either of these events. This claim filed and served on July 24, 2008, is therefore also untimely.

Accordingly, defendant's motion is granted, and the claim is dismissed in its entirety.

December 18, 2009

Binghamton, New York


Judge of the Court of Claims

The following papers were read on defendant's motion:

1) Notice of Motion filed on September 24, 2009; Affirmation of James E. Shoemaker, Assistant Attorney General, dated September 17, 2009, and attached Exhibits A through F.

2) Affirmation in Opposition of Howard B. Sherman, Esq., dated October 16, 2009.

Filed papers: Claim filed on July 24, 2008; Amended Claim filed on August 11, 2008; Verified Answer filed on August 29, 2008.

1. Claimant's previous motion for a change in venue of this claim from the Binghamton District to either the White Plains District or the New York District was denied (Garofolo v State of New York, Ct Cl, Jan. 15, 2009, Schaewe, J., Claim No. 115577, Motion No. M-75567 [UID # 2009-044-503]).

2. It appears that Dr. Schwartz is under contract with DOCS to go into the correctional facilities to examine and treat inmate patients.

3. Presumably Dr. Holder is also under contract with DOCS to provide treatment to inmate patients within certain correctional facilities.

4. In the alternative, defendant contends that the claim does not contain sufficient factual allegations to support its general, conclusory statements of malpractice, and therefore fails to state a cause of action.(5)

5. Defendant acknowledges that there are factual statements in the Notice of Intention, but states that they were excluded from the claim itself, and thus, have not been preserved. Moreover, defendant alleges that the facts set forth in the notice of intention do not establish what negligent acts occurred at which facility - stating that they took place at Mt. Vernon Hospital, Woodbourne Correctional Facility and Arhur Kill Correctional Facility - and that they do not provide any indication as to the manner in which defendant was negligent nor how claimant was injured.. '

6. Defendant's Motion to Dismiss, Exhibit D.

7. Claimant thereafter retained counsel, who served this claim on July 24, 2008. The claim was also filed on that same day.

8. Defendant's Motion to Dismiss, Exhibit D at 1.

9. Id.

10. Id.

11. Defendant's Motion to Dismiss, Exhibit E.

12. Moreover, to deem the relationship between an inmate and a DOCS medical provider in most cases as one of "trust and confidence" by the inmate in the treatment provided and in the provider him- (or her-) self would be, in the opinion of the Court, a vast overstatement.

13. Presumably a DOCS medical provider is aware when an inmate files a grievance. The Court questions whether a provider is actually informed when a notice of intention to file a claim is served.