New York State Court of Claims

New York State Court of Claims
SMITH v. THE STATE OF NEW YORK, # 2010-009-020, Claim No. 117698, Motion No. M-77746


Defendant's motion seeking dismissal of this medical malpractice claim based upon untimely service and filing was denied, as the Court applied the "continuous treatment" doctrine.

Case information

UID: 2010-009-020
Claimant(s): ROBERT G. SMITH and ANN P. SMITH
Claimant short name: SMITH
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 117698
Motion number(s): M-77746
Cross-motion number(s):
Claimant's attorney: POWERS & SANTOLA, LLP
BY: Daniel R. Santola, Esq.,
Of Counsel.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General
BY: Maureen A. MacPherson, Esq.,
Assistant Attorney General
Of Counsel.
Third-party defendant's attorney:
Signature date: June 30, 2010
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant has brought this pre-answer motion seeking dismissal of the claim based upon untimely service and filing.

The following papers were considered by the Court in connection with this motion:

Notice of Motion, Affirmation in Support, with Exhibits 1,2

Memorandum of Law in Support 3

Affirmation (in Opposition), with Exhibits 4

Affidavit of Robert G. Smith, with Exhibits 5

Affidavit of Mark J. Eisenberg, M.D. 6

Memorandum of Law in Opposition 7

Reply Affirmation, with Attachments 8

Correspondence dated April 19, 2010 from Powers & Santola, LLP (Sur-Reply) 9

The facts which provide the basis of this claim are essentially undisputed, and can be summarized as follows: In 1990, claimant Robert G. Smith(1) was diagnosed with a kidney condition know as IgA nephropathy. Claimant was advised that this progressive condition would eventually require kidney dialysis and eventually a kidney transplant. Claimant received this diagnosis from Dr. Stephen Scheinman, a nephrologist at University Hospital in Syracuse. From this point forward, claimant continued to be evaluated and treated by Dr. Scheinman at regular intervals.

In 2004, claimant began kidney dialysis treatment and was evaluated by the SUNY Health Science Center(2) transplant team to determine if he was a potential candidate for a kidney transplant.

According to claimant, he was accepted as a candidate for a kidney transplant procedure, his wife (claimant Ann P. Smith) was willing to act as a kidney donor, and she was determined to be an acceptable match. Since the dialysis treatments were controlling his kidney function, however, claimant was advised that there was no urgency for the transplant, and any such transplant would be considered an elective procedure.

In 2005, claimant began several pre-operative evaluations, including an echocardiogram stress test. The stress test, also performed at SUNY Health Science Center, was abnormal, and claimant was referred to Dr. Hani Kozman at the SUNY Health Science Center for a cardiac catheterization.

During this procedure, performed on March 11, 2005, Dr. Kozman found three blocked coronary arteries, and he inserted stents to clear these blockages. Following the procedure, claimant was directed by Dr. Kozman to begin taking daily doses of Plavix, a blood thinner, to prevent clotting.

Claimant continued to be monitored by the transplant team, and on June 30, 2005, three months after the stents had been inserted, a second echocardiogram stress test was performed. Dr. Kozman performed this second echocardiogram, advised claimant that the stents were all open and working properly, and that claimant was cleared for his kidney transplant surgery.

Accordingly, the kidney transplant surgery was scheduled for August 16, 2005, and on or about August 10, 2005 claimant was advised to discontinue his daily use of Plavix prior to the surgery.

The kidney transplant surgery was performed on August 16, 2005, as scheduled. Although the kidney transplant procedure was successful, claimant suffered a heart attack either during the procedure or immediately thereafter. It was subsequently determined that two of the three stents inserted by Dr. Kozman on March 11, 2005 were totally blocked, as a result of blood clotting. The clotting which occurred was attributable to the discontinuance of the Plavix for the one week period preceding the transplant surgery.

Claimant has remained under the care and treatment of the transplant team since the date of the kidney transplant. He has been evaluated by the transplant team on a regular basis, and his medications, evaluations, testing and medical instructions all have been handled by the transplant team. As set forth in his affidavit (Item 5), claimant's last appointment with the transplant team was on October 1, 2009, at which time he was scheduled for his next appointment on February 25, 2010. At some point following the kidney transplant surgery, claimant became aware that two different types of stents could have been utilized during his cardiac catheterization. Dr. Kozman had the option of using either drug-eluding stents or bare metal stents in this procedure. Drug-eluding stents require the use of an anti-platelet medication (such as Plavix) to be taken for an extended period of time following their insertion, while bare metal stents require such medication only for a period of approximately two to four weeks following insertion. Dr. Kozman elected to use the drug-eluding stents in this procedure, and recommended that claimant continue his use of Plavix for a minimum of three months, and preferably for a period of nine to twelve months, following the surgery.

This claim sets forth three separate and distinct causes of action. The first cause of action is based upon allegations of negligent medical treatment, the second is based upon lack of informed consent, and the third is a derivative cause of action on behalf of claimant Ann P. Smith. The claim was filed with the Clerk of the Court of Claims on November 17, 2009, and was served upon the Attorney General on or about December 15, 2009.

As stated at the outset, this motion to dismiss the claim is based upon defendant's contention that the claim was untimely served and filed.

Pursuant to Court of Claims Act 10 (3), a claim against the State based upon negligence must be filed with the Clerk of the Court of Claims and served upon the Attorney General within 90 days after accrual of said claim, unless within such time period a claimant serves upon the Attorney General a Notice of Intention to File a Claim, in which case the claim must be served and filed within two years after accrual. These filing and service requirements are jurisdictional in nature, and therefore must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721; Lepkowski v State of New York, 1 NY3d 201).

In this particular matter, it is defendant's contention that this claim, based upon the alleged medical malpractice of Dr. Kozman, occurred either on March 11, 2005 (the date of the procedure when the drug-eluding stents were inserted) or August 16, 2005 (when claimant suffered his heart attack while undergoing the kidney transplant). In either case, defendant contends that claimants have clearly failed to comply with the 90-day service and filing requirement of Court of Claims Act  10 (3).(3)

Claimants, however, rely upon the continuous treatment doctrine, set forth in 214-a of the CPLR, and contend that this doctrine tolled the 90-day period for serving and filing a claim under 10 (3).

It is well settled that the tolling provisions of the CPLR are applicable in the Court of Claims, and the 90 day period for serving and filing a claim pursuant to 10 (3) is tolled during the continuous period of time in which a claimant receives treatment for the same illness, injury or condition which gave rise to the alleged malpractice (Borgia v City of New York, 12 NY2d 151, Ogle v State of New York, 142 AD2d 37).

Defendant contends, nevertheless, that the tolling period provided by CPLR 214-a was severed when claimant Robert Smith filed a medical malpractice action in the New York State Supreme Court against Dr. Kozman on or about May 18, 2007. The Court agrees that the continuous treatment toll, as it pertains to Dr. Kozman individually, terminated upon the institution of legal action against him in Supreme Court (Toxey v State of New York, 279 AD2d 927, lv denied, 96 NY2d 711). On its face, it would therefore appear that this medical malpractice action was both filed and served well beyond the jurisdictional time limitations imposed by 10 (3).

However, upon a careful reading of the claim, the allegations of malpractice are not limited to the actions of Dr. Kozman. Rather, claimants contend that members of the transplant team at SUNY Health Science Center should have been aware, or should have at least inquired, as to the type of stents used by Dr. Kozman in his catheterization procedure, prior to scheduling any surgery, and the kidney transplant procedure should not have been scheduled without such knowledge.

From a careful review of the claim, however, it becomes apparent that claimant's heart catheterization was an integral and necessary part of his on-going medical treatment for his kidney condition, and was a required procedure in preparation for his kidney transplant. As such, Dr. Kozman's alleged malpractice cannot be viewed in a vacuum, but must be considered within the totality of claimant's treatment for his kidney condition. Furthermore, although not specifically addressed in the claim, it is evident from a consideration of the affidavits and medical records submitted herein that this claim is not limited to allegations of malpractice specifically against Dr. Kozman, but rather extends to members of the transplant team. As addressed by Dr. Eisenberg in his Affidavit (Item 6), two issues exist with regard to the heart catheterization and its effects on claimant's medical treatment for his kidney condition. The first issue is whether those drug-eluding stents should have been inserted, since it was readily known that claimant was preparing for major surgery. The second issue was whether claimant should have undergone his kidney transplant surgery within a year after those stents were inserted.

Since there is no question that claimant remained a patient and received treatment for his kidney condition on a continuous basis up to and through October 1, 2009 (at a minimum), this Court finds that the continuous treatment doctrine applies, and that claimant had 90 days from such date to serve and file his claim pursuant to Court of Claims Act 10 (3). Accordingly, the claim filed on November 17, 2009, and served upon the Attorney General on December 15, 2009, was both timely served and filed.(4)

Based upon the foregoing, therefore, it is

ORDERED, that Motion No. M-77746 is hereby DENIED in its entirety.

June 30, 2010

Syracuse, New York


Judge of the Court of Claims

1. The claim of Ann P. Smith is derivative in nature. Therefore, unless otherwise indicated, any reference to "claimant" is to Robert G. Smith.

2. "University Hospital" and "SUNY Health Science Center" are used interchangeably herein.

3. There is no indication that claimants ever utilized the alternative procedure of serving a Notice of Intention to File a Claim as permitted by 10 (3).

4. The Court is aware that in this motion both parties addressed the issue of whether claimants should be permitted to serve and file a late claim pursuant to Court of Claims Act 10 (6). There was also considerable discussion regarding the date on which certain medical documents were released to claimants (apparently to address the issue of whether claimants had a legally acceptable excuse for their failure to timely serve and file a claim). Based upon the Court's determination herein that the continuous treatment doctrine applies, any discussion and/or reference to a late claim application under 10 (6) is unnecessary and moot.