|Claimant(s):||AGNES CUMMINGS and ARTHUR CUMMINGS|
|Claimant short name:||CUMMINGS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MELVIN L. SCHWEITZER|
|Claimant's attorney:||DAVID J. HERNANDEZ & ASSOCIATES
By: Robert A. Meyerson
|Defendant's attorney:||ANDREW M. CUOMO, ATTORNEY GENERAL
By: Bridget Farrell, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 14, 2010|
|See also (multicaptioned case)|
In this medical malpractice case, claimants Agnes Cummings and her husband Arthur Cummings allege that Ms. Cummings was injured during treatment from "October 23, 2007, and continuing through a course of treatment with the appointments had on April 23, 2008, October 22, 2008 and the next appointment scheduled for April 1, 2009." See Claim, ¶ 11 annexed as Ex. B to Affirmation in Support, dated May 12, 2010 (Moving Affirmation).(1) The claim further alleges Ms. Cummings "was and continues to be a patient of . . . SUNY Downstate University Hospital of Brooklyn Electrophysiology Service . . ." Id. Claimants allege defendant failed to properly diagnose, care for and treat Agnes Cummings, including but not limited to the defendant's failure to properly implement, use and monitor thermal pads used during an invasive EP (Electrophysiological) Study and RFA (Radio Frequency Ablation)." Id. Claimants allege Ms. Cummings sustained severe and serious personal injuries, including permanent scarring of her lower back and a severe shock to her nervous system and severe physical pain and mental anguish. Id., ¶ 14. Claimants seek damages in the amount of $2 million. Id., ¶ 20.
On July 17, 2008, claimants served a notice of intention to file a claim. See Moving Affirmation, Ex. A. On April 28, 2009, claimants filed and served their claim. Id., Ex. B. Defendant answered on or about May 29, 2009. Id., Ex. C. In its answer defendant pleaded two jurisdictional affirmative defenses: failure to timely serve a notice of intention to file a claim and to timely file the claim in accordance with Court of Claims Act §§ 10 and 11 (First Affirmative Defense); and that claimants' lack of informed consent claim fails to allege with specificity the nature of the cause of action (Sixth Affirmative Defense). Id., ¶¶ 9 and 14. The court's preliminary conference order, dated March 31, 2010, directed claimants to move to strike the first and sixth affirmative defenses. Affirmation, ¶ 3.
Claimants now move to strike the first affirmative defense, or, in the alternative, for leave to file a late claim and to strike the sixth affirmative defense. Defendant cross-moves for summary judgment on the grounds that the action is barred by Court of Claims Act §§ 10 and 11 and CPLR 214-a.
Defendant asserts that the Notice of Intent was not properly served on the Attorney General's Office, an assertion not refuted by claimants, and accordingly it is a nullity. Court of Claims Act §§ 10 and 11. The action, nevertheless, may have been timely commenced if the claim itself was filed and served in compliance with §§ 10 and 11. Defendant asserts that the claim here was not timely filed and served, that is, it was not filed and served within 90 days after accrual of the claim. Defendant's opposition and cross-motion in this regard is based on its assertion that the incident at issue from which the claim accrued took place between October 23, 2007 and two days later when Ms. Cummings was discharged. See Affirmation of Bridget E. Farrell, dated June 10, 2010 (Opposition Affirmation), ¶ 5. The claim, however, alleges as follows:
From on or about October 23, 2007, and continuing through a course of treatment, with the appointments had on April 23, 2008, October 22, 2008 and the next appointment scheduled for April 1, 2009, Agnes Cummings was and continues to be a patient of Adam S. Budzikowski, M.D., Ph.D., Aaron Berger, M.D., John Kassotis, M.D. and SUNY Downstate Medical Center and SUNY Downstate University Hospital of Brooklyn Electrophysiology Service, their agents, servants and/or employees, under the medical care, diagnosis and treatment of these defendants, their agents, servants and/or employees, and as a result of the failure to properly diagnose, care for and treat Agnes Cummings, including but not limited to the defendants failure to properly implement, use and monitor thermal pads used during an invasive EP (Electrophysiological) Study and RFA (Radio Frequency Ablation).
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 or condition which gave rise to the claim for malpractice. Borgia v City of New York, 12 NY2d 151 (1962); Wolff v State of New York, 137 AD2d 684 (2d Dept 1988); Ogle v State of New York, 142 AD2d 37, 40 (3d Dept 1988). Defendant contends, however, that Ms. Cummings treatment about which she alleges malpractice ceased when she was discharged on October 25, 2007, two days after the EP Study and RFA on October 23, 2007. Opposing Affirmation, ¶ 5. Claimants disagree; they point out that defendant offers no expert medical opinion in support of its contention, and argue that the duration of the treatment at issue is a question of fact which cannot be resolved by summary judgment. Affirmation in Support, dated July 29, 2010 (Claimants' Reply Affirmation), ¶ 5.
The court agrees with the claimants. The court may not, and does not, assume defendant's contention is correct. Rather, it is obligated to accept the pleading as true at this threshold stage, and the "resolution of the continuous treatment issue . . . should abide relevant discovery." See Schrank v Lederman, 52 AD3d 494, 496 (2d Dept 2008). Accepting the claim's allegation of continuous treatment as true results in rendering the filing and service of the claim timely as claimants filed and served their claim within 90 days of the accrual of the claim that was continuing at the time of the filing and service. Accordingly, the court grants claimants' motion to strike the first affirmative defense and denies defendant's cross-motion to dismiss the claim.(2)
The court now turns to the issue of whether the lack of informed consent claim is pleaded with adequate specificity. The claim alleges:
Defendant failed to inform Agnes Cummings of the risks, hazards and alternatives connected with the procedures utilized in connection with the medical diagnosis, care and treatment of infant plaintiff's left arm injury [sic], so that an informed consent could be given.
Reasonably prudent persons in Agnes Cummings' position would not have consented to the treatments utilized in connection with the electrophysiological procedures, if she had been fully informed of the risks, hazards and alternatives connected with said procedures.
The failure to adequately and fully inform Agnes Cummings of the risks, hazards and alternatives of the procedures utilized in connection with the medical diagnosis, care and treatment rendered is a proximate cause of the injuries sustained by Agnes Cummings.
As a consequence of the foregoing, there was no informed consent to the procedures utilized in connection with the medical diagnosis, care and treatment as described herein.
The court finds this to be sufficiently particular to apprise defendant of the nature of the claim. Accordingly, the court grants claimants' motion to strike the sixth affirmative defense and denies defendant's cross-motion to dismiss.
October 14, 2010
New York, New York
MELVIN L. SCHWEITZER
Judge of the Court of Claims
1. In connection with this motion and cross-motion, the court has read and considered the Notice of Motion, dated May 12, 2010; Affirmation of Robert A. Meyerson, dated May 12, 2010, together with exhibits; Notice of Cross-Motion to Dismiss and Summary Judgment, dated June 10, 2010; Affirmation of Bridget E. Farrell, Esq., dated June 10, 2010, together with exhibits; Affirmation of David J. Hernandez, Esq., dated July 29, 2010; Physician's Affirmation of David A. Mayer, M.D., dated July 30, 2010, together with exhibits; and Affirmation in Reply of Bridget E. Farrell, Esq., dated September 3, 2010.
2. The court is aware that in this motion both parties addressed the issue of whether claimants should be permitted to file and serve a late claim pursuant to Court of Claims Act § 10 (6). Based upon the court's determination herein that the continuous treatment doctrine applies at this threshold stage, any discussion and/or reference to a late claim application under § 10 (6) is unnecessary and moot.