Movants seek late claim relief pursuant to Court of Claims Act (CCA) § 10 (6) for personal injuries and loss of services caused by defendant and its agents during the delivery of their baby at Stony Brook Southampton Hospital.
|Claimant(s):||MEGAN STIRNWEISS AND MATTHEW STIRNWEISS|
|Claimant short name:||STIRNWEISS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||STEPHEN J. LYNCH|
|Claimant's attorney:||Law Office of Robert F. Danzi
By: Christine Coscia, Esq.
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Mario E. Simmons, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 5, 2018|
|See also (multicaptioned case)|
Movants seek late claim relief pursuant to Court of Claims Act (CCA) § 10 (6) for personal injuries and loss of services caused by defendant and its agents during the delivery of their baby at Stony Brook Southampton Hospital (SBSH) on December 31, 2017. The proposed claim alleges that the mother's injuries were caused by the negligence and malpractice of the defendant "in failing to properly manage [movant's] labor and delivery, in failing to perform a caesarean section, in failing to have a doctor available with privileges to perform a cesarean section, and in negligently extending privileges to Pedro Segarra, M.D., among others." Defendant opposes the motion.
"The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756 ). In determining whether late claim relief should be granted, consideration must be given to the six factors enumerated in CCA § 10 (6). The presence or absence of any particular factor is not controlling, nor are the six factors necessarily exhaustive (see Broncati v State of New York, 288 AD2d 172 [2d Dept 2001]). The six statutory factors are as follows:
(1) whether the defendant had notice of the essential facts constituting the claim;
(2) whether the defendant had an opportunity to investigate the circumstances underlying the claim;
(3) whether the defendant was substantially prejudiced by the delay;
(4) whether the delay was excusable;
(5) whether the claimant has any other available remedies; and
(6) whether the claim appears to be meritorious.
A proposed claim which satisfies the pleading requirements of CCA § 11 (b) must accompany any application for late claim relief.
Preliminarily, this motion for late claim relief was filed within the time allowed by law for the action to be brought in another court (see CCA § 10 ; CPLR 214 and 214-a) and is therefore timely made.
The CCA § 10 (6) factors of notice, opportunity to investigate and potential prejudice to the defendant are interrelated and may be considered together (see Wetter v State of New York, UID No. 2013-028-512 [Ct Cl, Sise, J., June 17, 2013]). Here, defendant has the relevant records in its possession and the relevant medical providers are in its employ. Although it cannot be said that possession of the relevant medical records provided notice (see Ramirez v County of Nassau, 13 AD3d 456 [2d Dept 2004]; Conroy v State of New York, 192 Misc 2d 71 [Ct Cl 2002]), the State will have ample opportunity to investigate the matter and will not suffer significant prejudice despite not having notice of the claim until the filing of this motion more than seven months after the cause of action accrued. Thus, the factors of opportunity to investigate and potential prejudice weigh in movants' favor, while the fact that defendant did not have notice weighs against movant.
Turning to the factor of whether the delay was excusable, movants argue that they did not consult with their attorney for almost six weeks after the alleged negligence and malpractice because they were grieving the death of their newborn child on January 7, 2018. Counsel then immediately requested medical records from defendant and other providers, which took more than four months to receive, and sought a professional medical opinion to determine whether the claim had merit. The delay caused by obtaining the medical records and an expert medical opinion is not, however, a sound excuse and has been held to be law office failure (see Decker v State of New York, 2018 N.Y. Slip Op. 05751 [2d Dept 2018]). This factor is resolved in favor of defendant.
Turning to the factor of whether the proposed claim has merit, movants must establish that the claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Taormina v State of New York, UID No. 2017-032-005 [Ct Cl, Hard, J., Feb. 7, 2017], quotation and citation omitted; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl, 1977]).
In support of the motion, proposed claimants submit the affidavit of the mother, an affidavit of merit by Gary R. Brickner, M.D., the medical records from SBSH and the midwifery that provided prenatal care for the mother and the autopsy records for the deceased infant.(1) Dr. Brickner states that defendant deviated from medical standards in not providing a caesarean section after the active pushing stage of labor exceeded three and a half hours yet the record shows that movant declined the procedure. That Dr. Brickner fails to address this point is troubling. Similarly troubling is the fact that without any basis in the records he reviewed, Dr. Brickner concludes that the hospital was inadequately staffed for a holiday weekend, that "the physicians they extended privileges to were not properly credentialed" and that defendant "further deviated from good and accepted practice when it extended privileges for forceps-assisted delivery to Dr. Segarra, and then failed to properly monitor his use of this instrument." Dr. Brickner does, however, opine on other aspects of proposed claimant's allegedly negligent medical treatment which appear to have a basis in the record. For example, he states that the hospital deviated from good and accepted practice by causing her to wait over thirty minutes prior to treatment and failed to perform a sonogram at any time prior to delivery. In sum, the Court finds that there are sufficient indicia of merit for this factor to weigh in movant's favor.
Finally, movants have already filed suit in Suffolk County Supreme Court against the doctors and midwives involved in proposed claimant's prenatal care, labor and delivery and thus it cannot be said that they have no other remedy available. Further, the allegations which would not be duplicative of those already filed in Supreme Court are those that have no basis in the record before this Court, such as the allegation that the hospital was inadequately staffed and that it negligently extended privileges to Dr. Segarra. This factor is resolved in favor of defendant (see Charles v State of New York, UID No. 2005-030914 [Ct Cl, Scuccimarra, J., May 3, 2005])
Based on the foregoing and having considered all the factors enumerated in CCA § 10 (6), the Court finds that the factors weigh against movants' application for late claim relief. The motion (M-92548) is therefore denied.
December 5, 2018
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims
The following papers were read and considered by the Court on movants' motion for late claim relief:
1. Notice of Motion, Affirmation in Support with Exhibits.
2. Affirmation in Opposition with Exhibits.
3. Reply Affirmation.
1.It is notable that there are no medical records for the mother after she was discharged from the hospital on January 2, 2018 - two days after the delivery of the baby - despite the claim alleging that she "suffered disruption, dislocation, tearing and lacerations of her internal organs and structures. She is in constant pain and her internal organs and structures require reconstructive surgery."