Late claim motion granted on second attempt. No prohibition against successive applications for same unless the time frame within which to do so has expired. Based on factual recitation, and attached medical records, causes of action for negligence, lack of informed consent, and medical malpractice may arise from the prescription of drugs with alleged harmful side effects for claimant, suffering from Hepatis C and susceptible to diabetes. No rebuttal by person with knowledge.
|Claimant(s):||DAVID A. TYLER|
|Claimant short name:||TYLER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect the only proper defendant.|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||DAVID A. TYLER, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||March 29, 2010|
|See also (multicaptioned case)|
The following papers were read and considered on claimant's motion for late claim relief:
1-5 Notice of Motion for Permission to File Late Claim; Affidavit in Support of Motion for Permission to File a Late Claim by David A. Tyler, Claimant; Notice of Motion/Intention to File Claim; Affidavit in Support of Notice of Motion/Intention to File Claim; Claim and attached exhibits
6 Affirmation in Opposition for Leave to File Late Claim by Barry Kaufman, Assistant Attorney General and attached exhibit
7 Filed papers: Tyler v State of New York, UID # 2009-030-572, Claim No. NONE, Motion No. M-77371 (Scuccimarra, J., December 18, 2009)
David A. Tyler alleges that medical personnel at Fishkill Correctional Facility [Fishkill] and at other facilities operated by the New York State Department of Correctional Services [DOCS], failed to provide him with adequate medical and psychiatric(2) care while he was in DOCS custody. [Claim, ¶¶ 1 and 18; see also Notice of Motion]. More specifically, he indicates that he was treated with psychotropic medications, namely, Zyprexa, Wellbutrin, and Vistaril, as well as a regimen of Remeron prescribed for the treatment of Hepatitis C, was not warned about any side effects, not given alternatives, and that such medications alone and in combination caused harm to his liver. [Claim, ¶¶ 2-12; see also Notice of Motion]. He asserts a continuing cause of action and no specific date of accrual in the proposed claim itself, except an indication that he discontinued the medication regimen in December 2008. [Claim, ¶12]. Other dates appear in the additional submissions.
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.
Additionally, the 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. For a negligence cause of action, the applicable statute of limitations would be three (3) years. Civil Practice Law and Rules §214.
In prior motion practice claimant had provided several dates, as follows:
"Mr. Tyler asserts that he was receiving Zyprexa and Wellbutrin in July 2007 as a matter of course, and was later prescribed . . . [Remeron] in August 2008. He asserts that he should not have been given Remeron based upon medical indicia that as an individual with chronic hepatitis, who was also taking the psychotropic medications indicated, and that he suffered further injury to his liver as a result. He alleges he stopped taking the Remeron on July 24, 2009." [See Tyler v State of New York, UID # 2009-030-572, Claim No. NONE, Motion No. M-77371 (Scuccimarra, J., December 18, 2009)].
These dates are repeated in the submissions herein.
The Court will assume the motion is timely despite the lack of specificity, since the motion was made on or about December 16, 2009 (based upon when the affidavit of service was notarized, since one copy of the affidavit of service itself contains an unlikely date of service(3) ), which appears to be within the statutory period.(4)
Factors other than the appearance of merit will not be addressed at length here, since claimant has not really added any new information with regard to a reasonable excuse and the like, and the presence or absence of any one factor is not dispositive in any event. Indeed, claimant has not addressed any of the factors as noted in the earlier decision. By the same token, the defendant has not addressed any of the factors either, except to attach the affirmation submitted in the earlier motion practice, that address some, but not all, of the late claim considerations. "Even if the excuse for failing to file a timely claim is 'not compelling,' the denial of a motion to file a late claim may . . . constitute an improvident exercise of discretion where the delay is minimal, the State suffered no prejudice, and there may be issues of fact as to the merits of the claim." Jomarron v State of New York, 23 AD3d 527 (2d Dept 2005).
Notably, in his prior application for late claim relief [see Tyler v State of New York, Claim No. NONE, Motion No. M-77371 (Scuccimarra, J., December 18, 2009) UID #2009-030-572], claimant failed to append a proposed claim, an affirmation by a medical or psychiatric expert, or self-explanatory medical records, to allow the Court to assess whether his claim had the appearance of merit for late claim purposes.
As often repeated, 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, which becomes problematic at times when causes of action are asserted that will require expert testimony in order to establish a cause of action at trial, such as a medical malpractice claim. 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)
With the present application, in addition to his sworn affidavits and notices of motion, Mr. Tyler has now appended a proposed verified claim, included some pertinent medical records evidencing his having undergone a liver biopsy, having "Stage 3" liver disease, and has additionally included a "fact sheet" "[r]evised 11/24/03" containing a list of antidepressant medications (including at least one of the medications he was prescribed) and their associated side effects for the patient. [See Affidavit in Support of Notice of Motion/Intention to File Claim, ¶6; Claim ¶7, Exhibit A]. On the "fact sheet" which he indicates is published by the Office of Mental Health, and that he received from medical personnel during his treatment, there is a notation with the reassuring generalization that "[t]here are no known long term risks" to the listed antidepressant medications, some of which include the medications he states were prescribed. [See Affidavit in Support of Notice of Motion/Intention to File Claim, Exhibit A]. He also makes reference to the pharmaceutical literature provided with the associated drugs (unfortunately, he does not include any copies of same), but avows that such literature provides and should have alerted the treating physicians as to the dangers of administering the drug combination to one with claimant's history of Hepatitis C, and susceptibility to diabetes. [Claim, ¶¶3,4]. See DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984).(7) Causes of action that may arise from the facts he recites throughout his submissions include negligence, lack of informed consent [see Public Health Law § 2805-d], and medical malpractice.
As noted, in opposition to the motion defendant has included only an attorney's affirmation, saying that this is the second time claimant has asked for late claim relief, and that the prior denial "bar[s]" the present motion based on the "doctrines of res judicata and collateral estoppel," [Affirmation in Opposition, ¶3], clearly an ill-founded legal posture with respect to an application for late claim relief such as this one. It is ill-founded because unless the time frame within which to do so has expired [see e.g. Roberts v City University of New York, 41 AD3d 825 (2d Dept 2007)], there is no prohibition against successive applications for late claim relief. Court of Claims Act §10(6).
Counsel attaches the affirmation he submitted with regard to the prior motion as an exhibit. [Affirmation in Opposition, Exhibit 1]. No rebuttal by a person with knowledge as to the factual assertions made by claimant in his affidavit(s) and in his verified claim are included in defendant's submission. Thus, claimant's assertions that he suffered from multiple medical conditions (supported in the narrative portions in what medical records he has produced), that the drugs prescribed for his psychiatric issues contained warnings about prescribing same for one with his "compromised and dysfunctional Hepatic and Renal systems" [Claim, ¶3], that he was not warned of any risks associated with the psychiatric medications, that the "fact sheet" is issued by the Office of Mental Health at the medication window and does not provide any advice as to drugs taken in combination, and that he suffered further damage to his liver, among other things, as a result, are not contradicted by a person with knowledge, or even by submission of additional records maintained by the correctional facility.
"Facts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits . . . (citation omitted)." Sessa v State of New York, 88 Misc 2d 454, 458 (Ct Cl 1976), affd 63 AD2d 334 (3d Dept 1978), affd 47 NY2d 976 (1979); see also Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)(8) . Defendant has not submitted an affidavit from anyone with knowledge of the relevant facts and circumstances, instead relying solely on the affirmation of counsel who is without personal knowledge of the claimant's treatment by medical personnel at the facility. As the court noted in Matter of Santana v New York State Thruway Auth., supra, at 10:
"the word 'meritorious' directs the court's attention to the substance of the claim, rather than to the formal sufficiency of the pleadings. The court's concern is not so much whether a particular pleading properly states a cause of action, but whether claimant indeed has a cause of action." (emphasis added).
Not just the proposed claim, but the affidavits and other exhibits presented are reviewed to determine whether the Court should exercise its discretion and grant late claim relief. See Mamedova v City University of New York, 13 Misc 3d 1211(A) (Ct Cl 2006); Richards v State of New York, UID # 2006-036-504, Claim No. NONE; Motion No. M-70768 (Schweitzer, J., March 27, 2006)(9) .
Here, while production of the actual pharmaceutical literature [see DePaolo v State of New York, supra] would have been helpful, given the claimant's sworn statements, and medical records containing notations as to the various prescriptions as well as notations about claimant's multiple medical conditions, absent any factual rebuttal it is certainly arguable that the "record as a whole" shows that there may be a valid cause of action.
As is often repeated, it is something less than prima facie proof that is required to show the appearance of merit. In this regard, clearly an expert affidavit is suggested when reviewing late claim motions because in some cases the absence of any expert analysis prevents an appropriate assessment of the merit of the claim. In others, however, the appearance of merit can be shown without the need of expert evaluation. See e.g. Matter of O'Shea v State of New York, 278 AD2d 237 (2d Dept 2000);(10) Doe v State of New York, UID # 2006-036-556, Claim No. None, Motion No. M-71559 (Schweitzer, J., September 21, 2006).(11) It is common knowledge that medical prescriptions may have side effects, some more harmful than others. Claimant, as is typical of pro se litigants, has not presented the most concise description of what happened to him while in the care and custody of the defendant. Nonetheless, he has presented sufficient information to show an arguable appearance of merit, based on the relatively low threshold articulated under Matter of Santana v New York State Thruway Auth., supra, and the complete absence of any factual rebuttal by the defendant.
At trial, of course, given the burden of proof required to establish even a prima facie case, claimant will need expert testimony to sustain his claim. But this is a far different concern when considering the ameliorative purpose of allowing late service and filing of a claim.
Based on the foregoing, and after carefully balancing the pertinent factors, claimant's motion for permission to serve and file a late claim [M-77682] is hereby granted. Claimant is directed to serve and file a claim similar to the one proposed in accordance with the relevant provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, including those pertaining to manner of service and payment of the filing fee, within 40 days of the filing date of this decision and order.
March 29, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
2. The Court does not even address the possibility that claimant may be entitled to a toll under Court of Claims Act §10(5) in any event, given his psychiatric illness. Indeed claimant makes reference to the issue, albeit elliptically, by citing to Boland v State of New York, 30 NY2d 337 (1972), the seminal case on the matter, whereby the claimant therein was entitled to serve and file her claim as of right within two (2) years of removal of the legal disability. Of course there, the "claim accrued while claimant was under the supervision of the State hospital. Since claimant was under a continuing legal disability during that period, she is entitled to serve her claim within two years of final discharge as of right." Boland v State of New York, supra, at 343.
3. January 15, 2010
4. A motion is "made when a notice of motion . . . is served." Civil Practice Law and Rules §2211; see Rivera v Glen Oaks Village Owners Inc., 29 AD3d 560, 561 (2d Dept 2006), lv denied 9 NY3d 817 (2008); see also Jenkins v State of New York, 119 Misc 2d 144, 145 (Ct Cl 1983).
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. 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.
8. "When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citation omitted)." Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978).
9. "[D]efendant confuses the burden imposed on a putative claimant who seeks an exercise of the court's discretion pursuant to § 10(6) with the standards applicable to a timely-interposed claim as set forth in § 11(b), which sets forth the required contents of a claim. The purpose of the § 11(b) requirements is to provide the State with notice, within the applicable period as set forth in § 10, of the facts and circumstances underlying the claim so that a prompt investigation may be performed . . . (citations omitted). A claimant seeking permission to late file, on the other hand, by definition, has not served a document complying with § 11(b) which affords the opportunity for a prompt investigation. The required analysis under § 10(6) is aimed at determining whether the court should exercise its discretion and allow the claim to proceed despite claimant's failure to have timely served a proper document."
10. Late claim relief granted. "[T]he Court of Claims did not impermissibly cast itself in the role of a medical expert when it determined that the hospital records submitted by the claimants supported the assertion that the claimant . . . was not treated for more than six hours after he entered the emergency room." Matter of O'Shea v State of New York, supra.
11. "Contrary to defendant's assertion, the court does not require an affidavit from a psychiatric expert in order to find apparent merit to the proposed claim (Morales v State of New York, 292 AD2d 455 [2d Dept 2002]; Caracci v State of New York, 178 AD2d 876 [3d Dept 1991]; DePaolo v State of New York, 99 AD2d 762 [2d Dept 1984]), notwithstanding that psychiatric testimony may be relevant at least to some of the potential bases of liability arising out of the alleged events."