Claimant's motion to reargue prior order dismissing claim as untimely was granted and, upon reargument, Court adhered to its prior decision.
|Claimant(s):||DIALLORAFIK A. MADISON AND TONYIA MICHELLE MADISON|
|Claimant short name:||MADISON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||DialloRafik A. Madison, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 2, 2010|
|See also (multicaptioned case)|
By Decision and Order of this Court filed October 1, 2009, defendant's motion for dismissal pursuant to CPLR 3211 (a) (2) (7) and (8) was granted on the ground that the claim was untimely filed and served. Claimant now moves for leave to reargue and renew the defendant's prior motion pursuant to CPLR 2221 (d) and (e). For the reasons which follow, claimant's motion is granted to the extent he sought leave to reargue the prior motion and, upon reconsideration, the Court adheres to its prior determination dismissing the claim.
Claimant, DialloRafik A. Madison, asserts various causes of action arising out of a surgical procedure allegedly performed by a physician's assistant at Great Meadow Correctional Facility (Great Meadow) on February 12, 2003. Claimant alleges in this regard that he consented to the removal of a nodule from his right elbow by a physician, not a physician's assistant, and that the removal of the nodule by a physician's assistant constitutes an assault and battery and supports his cause of action for lack of informed consent. Claimant also attempts to pursue a derivative claim on behalf of his wife, Tonyia Michelle Madison.
As set forth at length in this Court's prior Decision and Order, an action in federal court was previously commenced, which included the state law claims against the physician's assistant who allegedly performed the surgery on the claimant's elbow as well as his supervisor and the Superintendent of Great Meadow Correctional Facility. By Memorandum Decision and Order dated March 11, 2009, Chief United States District Court Judge Norman A. Mordue granted the defendants' motion for summary judgment dismissing the federal claims and dismissed the state law tort claims without prejudice. The instant action was thereafter commenced by filing and service of the claim on April 10, 2009.
In support of its dismissal motion defendant argued that the claim filed and served on April 10, 2009 was untimely under both Court of Claims Act § § 10 (3) and 10 (3-b) because the tolling provision of CPLR 205 (a) does not apply to statutory periods for filing and serving a claim against the State of New York. Applying the decision of the Appellate Division, Third Department, in Signature Health Ctr., LLC v State of New York (42 AD3d 678 ), the Court addressed the merits of the motion but, nonetheless, found that the claimant's failure to establish that the prior action was timely commenced was fatal to his claim. In this regard CPLR 205 (a) permits, with certain exceptions not applicable here, the commencement of a new action within six months after the termination of the prior action "provided that the new action would have been timely commenced at the time of commencement of the prior action. . . " As claimant failed to establish that the new action would have been timely commenced at the time of commencement of the prior action, the defendant's motion for dismissal was granted.
A motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see, CPLR 2221 [d] ; Peak v Northway Travel Trailers, 260 AD2d 840 ; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781 . Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (see, Foley v Roche, 68 AD2d 558, 567 , lv denied 56 NY2d 507 ). Review of the claimant's affidavit submitted in opposition to the defendant's prior motion reveals that in addition to arguing that the action was timely commenced by virtue of the tolling provision of CPLR 205 (a), claimant also sought to invoke the continuing treatment doctrine to toll the accrual date of the instant action (see affidavit of DialloRafik A. Madison sworn to on May 26, 2009, ¶ 17). As claimant correctly contends, this argument was not addressed in the Court's prior Decision and Order. Accordingly, claimant's motion for leave to reargue is granted; however, for the following reasons, the Court adheres to its prior determination that the claim was untimely filed and served.
As a general rule, a medical malpractice claim accrues on the date of the alleged wrongful act or omission (Nykorchuck v Henriques, 78 NY2d 255 ). The continuous treatment doctrine, codified in CPLR 214-a (see, Borgia v City of New York,12 NY2d 151 ), provides a stay of the statutory limitations period "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint" (McDermott v Torre, 56 NY2d 399, 405 , quoting Borgia v City of New York, 12 NY2d 151, 155; Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 ). "The doctrine rests on the premise that the trust and confidence that marks such relationships puts the patient at a disadvantage in questioning the doctor's skill because to sue while undergoing treatment necessarily interrupts the course of treatment " (Massie v Crawford, 78 NY2d 516, 519 ; see also Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 339 ; Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 ; Rizk v Cohen, 73 NY2d 98, 104 ). It has been stated therefore that it "would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician or hospital" (Borgia v City of New York, 12 NY2d at 156). However, where conduct of the patient signals the end of the relationship of trust and confidence between the patient and physician, the above policies underlying the continuing treatment doctrine no longer apply (Allende v New York City Health & Hosps. Corp., 90 NY2d at 339). For this reason it has been held that the continuing treatment doctrine is inapplicable where a patient's consultation with attorneys "plainly severed whatever relationship of trust and confidence that previously may have been said to exist. . ." (Schloss v Albany Med. Ctr., 278 AD2d 614, 615 , lv denied 96 NY2d 707 ). In the prison setting, where an inmate has no choice but to submit to treatment by a facility physician, the "unequivocal act of signaling legal proceedings by the filing of the notice of intention to file a claim sufficiently memorializes the end of confidence in his course of treatment such that his claim should have been timely filed thereafter" (O'Connor v State of New York, 15 AD3d 827, 828 , lv denied 5 NY3d 702 ; see also Toxey v State of New York, 279 AD2d 927, 929 , lv denied 96 NY2d 711 ; Larry v State of New York, Ct Cl, December 1, 2003 [Claim No. 107124, Motion No. M-67391, UID # 2003-015-368] Collins, J., unreported). Likewise, an inmate's claim reciting that a grievance had been filed against the doctor who discontinued certain medical treatment has been held to indicate the "antitheses" of a trusting relationship thereby providing no basis for the application of the toll (see Watson v State of New York, Ct Cl, June 19, 2006 [Claim No. 111107, Motion No. M-71496, UID # 2006-032-052] Hard, J., unreported). The foregoing cases lead to the conclusion that the claimant's filing of an action in federal court signaled the end of trust and confidence in his course of treatment such that his claim should have been timely filed thereafter. While the date of commencement of the federal Court action is unclear, claimant's action against the physician's assistant and his supervisor was transferred to the United States District Court for the Northern District by Decision and Order of the United States District Judge Charles J. Siragusa dated July 19, 2006. Accordingly, even assuming that continuing treatment of the claimant's elbow injury occurred through that time, claimant's filing and service of the instant claim on April 10, 2009 was untimely (see Court of Claims Act § § 10 , 10 [3-b]).
Moreover, the medical records originally proffered by the claimant in support of application of the continuing treatment doctrine were from Mid-State Correctional Facility (Mid-State), not Great Meadow Correctional Facility where the malpractice allegedly occurred. Where continuing treatment is provided by someone other than the allegedly negligent practitioner, there must be some agency or other "relevant relationship" between the respective healthcare providers for the continuing treatment doctrine to toll the applicable period of limitations (Allende v New York City Health & Hosps. Corp., 90 NY2d at 340 [quoting Meath v Mishrick, 68 NY2d 992, 994 ; Ganapolskaya v V.I.P. Medical Assoc., 221 AD2d 59 ). Mere common ownership of the facilities in which treatment was rendered is an insufficient nexus as, taken to its extreme, such a rule would allow patients to move among commonly owned facilities indefinitely, keeping alive the statutory limitations period for malpractice actions (Allende v New York City Health & Hosps. Corp., 90 NY2d at 340) .
Application of the continuing treatment doctrine in the prison setting was addressed by the Appellate Division, Third Department, in Howard v State of New York (96 AD2d 656 ). In Howard, the Court declined to apply the continuous treatment doctrine even though an inmate was transferred to several different prison facilities and all of the physicians who treated him were employed by the State "because, after [the inmate was transferred from one prison facility to another], claimant was no longer being treated by the doctors who had treated him in [the prison] ...where the alleged malpractice occurred" (Id. at 657). As a separate basis for declining application of the continuing treatment doctrine, the Court stated: "Furthermore, since [the claimant] is still in the prison system, the commencement of an action would have in no way interrupted any treatment which his present doctors were mandated to give him and he to receive" (Id. at 657). The Third Department in Ogle v State of New York (142 AD2d 37 ) later clarified its holding in Howard, stating:
"[W]e ...disagree with the State's conclusion that Howard (supra) requires rejection of the continuous treatment doctrine in the instant case as a matter of law. In Howard, the inmate was transferred for administrative rather than medical purposes. Here, claimant was not transferred, but instead hospitalized for the purpose of continuing his medical treatment, and when the treatment was concluded returned to [the prison]. Nevertheless, there must be some relevant relationship between the allegedly negligent physician and the subsequent treating physician before the subsequent treatment is imputed to the initial physician for tolling purposes" (id. at 39, citing Meath v Mishrick, 120 AD2d 327, affd 68 NY2d 992; Evra v Hillcrest Gen. Hosp., 111 AD2d 740).
The Court in Ogle concluded that a determination regarding application of the continuous treatment doctrine could not be made as a matter of law since there were questions of fact regarding the relationship between the subsequent treating facility and the prison in which the claimant had initially been treated. In reaching this conclusion, the Court declined to follow the holding of the Appellate Division, Fourth Department, in Kelly v State of New York, 110 AD2d 1062 , which applied the continuous treatment doctrine to medical care provided in three different prison facilities on the sole ground that all of the physicians were employed by the State. The Ogle holding requiring "some relevant relationship" between the treating facilities was in accord with the subsequent decision of the Court of Appeals in Allende v New York City Health & Hosps. Corp. (supra), which confirmed the requirement for some agency or other relevant relationship between the initial and subsequent healthcare providers before the later subsequent treatment is imputed to the initial healthcare provider for tolling purposes.
The proof originally submitted by the claimant in support of the application of the continuing treatment doctrine consisted of a Patient Referral Form dated April 3, 2009 from Mid-State Correctional Facility authorizing a CT scan of the claimant's right elbow and a Request and Report of Consultation dated April 17, 2009 indicating a CT scan of the elbow was completed and that a report would follow. In the Court's view this proof falls far short of the showing necessary to invoke the continuing treatment doctrine. Unlike the facts in Ogle, where the claimant was transferred to another facility for continuing treatment of the same medical condition or disease, here no argument is made that claimant's transfer to Mid-State occurred for purposes of medical treatment.
In the instant matter, the claimant failed to establish either the existence of an agency or other relevant relationship between the initial and subsequent medical providers or a relationship between the original, allegedly negligent medical treatment provided at Great Meadow and the treatment provided at Mid-State. The two medical forms submitted by claimant are insufficient to establish a continuous course of treatment related to the original condition or complaint (see McDermott v Torre, 56 NY2d at 405; Gomez v Katz, 61 AD3d 108 ). Claimant was required to "proffer evidence supporting an established course of treatment with respect to the condition that gave rise to the lawsuit" (Boyle v Fox, 51 AD3d 1243, 1244 ). The records from Mid-State Correctional Facility submitted in opposition to defendant's dismissal motion reflect worsening right elbow pain over a period of two years. There is nothing to suggest that the condition evaluated at Mid-State Correctional Facility in April, 2009 had any relationship to the surgery performed at Great Meadow in February, 2003 so as to constitute a continuous course of treatment.
With respect to that branch of the claimant's motion seeking renewal, the law is well settled that " 'a motion to renew must be based upon newly discovered evidence which existed at the time the prior motion was made, but was unknown to the party seeking renewal, along with a justifiable excuse as to why the new information was not previously submitted' " (Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 , quoting Wahl v Grippen, 305 AD2d 707, 707 ; see also CPLR 2221[e]). "Because renewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation, a party seeking that relief must provide a reasonable justification for the earlier failure to present such facts" (Cippitelli v County of Schenectady, 307 AD2d 658, 658 [internal quotation marks and citation omitted]). In support of renewal claimant submits physical therapy records from Mid-State Correctional Facility for the period June 23, 2009 through August 7, 2009. Inasmuch as this treatment occurred after the date of the original motion, claimant asserts he has a reasonable excuse for not providing the records earlier. As set forth above, however, the submission of records which were not in existence at the time of the original motion forms no basis for renewal. In addition, treatment obtained after the date the action was commenced may not resurrect a claim that was untimely at the time it was filed and served. Moreover, this treatment was provided at Mid-State Correctional Facility and, as set forth previously, claimant failed to establish a nexus between the treatment provided there and the treatment provided at Great Meadow Correctional Facility in 2003 where the allegedly wrongful act occurred.
Based on the foregoing, claimant's motion for leave to reargue is granted and, upon reconsideration, the Court adheres to its original determination dismissing the claim as untimely filed and served. The motion in all other respects is denied.
March 2, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: