Movant's motion for permission to serve a late notice of claim upon Roswell Park Cancer Institute is denied. Governor's Executive Orders did not apply to extend the applicable statute of limitations; the doctrine of equitable estoppel does not apply to these facts; CPLR 214-c applies to the claim but the motion remains untimely; and continuous treatment doctrine does not apply to these facts.
|Claimant(s):||PENNY L. NELSON|
|Claimant short name:||NELSON|
|Footnote (claimant name) :|
|Defendant(s):||ROSWELL PARK CANCER INSTITUTE CORPORATION|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||BLACK, LYLE & HABBERFIELD, LLP
BY: Kevin M. Habberfield, Esq.
|Defendant's attorney:||GIBSON McASKILL & CROSBY, LLP
BY: Craig R. Watson, Esq.
|Third-party defendant's attorney:|
|Signature date:||March 5, 2021|
|See also (multicaptioned case)|
Movant Penny L. Nelson moves the Court for permission to serve a late notice of claim nunc pro tunc upon defendant Roswell Park Cancer Institute Corporation (Roswell Park) pursuant to General Municipal Law § 50-e. The notice of motion and supporting affidavit with exhibits were filed on August 4, 2020. Roswell Park's request to extend the time to serve opposing papers was granted and Roswell Park's affidavit in opposition was filed on October 23, 2020. Movant's reply affidavits were filed on December 14, 2020. On September 2, 2020, Roswell Park's attorneys requested oral argument, which was granted and then scheduled for December 18, 2020. Movant's counsel consented to a request by Roswell Park to adjourn the return date so that sur-reply papers in opposition could be served. As a result, the Court adjourned oral argument of this motion to January 20, 2021.
The movant alleges that in June 2018 during the course of her hospitalization for cancer treatment at Roswell Park, intravenous (IV) pain medication administered to her was tampered with by Kelsey Mulvey, an employee of Roswell Park. During her hospitalization, movant was administered IV pain medication on numerous instances but experienced no pain relief. She later became ill, experiencing chills and intermittent episodes of intense sweating. Movant remained at Roswell Park for about 30 days to treat what she believed was a severe infection caused by the tampered IV pain medication. On June 27, 2018, Roswell Park placed Ms. Mulvey on administrative leave for engaging in this activity and she was then discharged on July 13, 2018. Movant alleges that she suffered severe and unnecessary postoperative pain due to Ms. Mulvey's diversion of pain medication that prolonged her hospitalization.
The proposed notice of claim seeks to recover damages for personal injuries that occurred during movant's hospitalization at Roswell Park in June 2018 relating to the tampered IV pain medication. The specific date(s) of her hospitalization are not set forth as movant was unable to obtain her hospital records prior to filing this motion. On June 26, 2020, movant also served by certified mail, return receipt requested, a notice of claim in the form submitted as the proposed notice of claim in this motion (Affidavit of Kevin M. Habberfield, Esq. at Exhibit B). The proposed notice of claim states allegations of negligence and medical negligence, including unauthorized access to patient medicines; unauthorized access to patient records; adulteration of patient medicine and patient records; failure to communicate and document modifications to patient records; negligent hiring and retention of nursing staff; improper oversight, supervision and control of nursing staff; res ipsa loquitur; and violation of New York and Federal rules and regulations relating to the administration of patient medicine and pain medication.
In support of this motion, movant submits a letter received from Roswell Park dated October 16, 2019 advising that they had "experienced a drug diversion by a former nurse last year" and that as part of their continuing investigation with federal drug enforcement agencies, "we discovered on August 22, 2019 that this nurse inappropriately accessed medical records of individual patients." The letter adds that "[w]e believe she started doing this in February of 2018 and the activity ended on June 27, 2018. The staff member was immediately placed on administrative leave and her employment was terminated on July 13, 2018." The letter further states that movant's medical records were accessed by this individual and although Roswell Park did not believe it was accessed for movant's financial information, they advised claimant to review her financial records and offered one year of credit monitoring and reporting services at no cost (Affidavit of Kevin M. Habberfield, Esq. at Exhibit A). The movant did not retain her attorneys until March 3, 2020, long after the expiration of the ninety day period set forth in General Municipal Law § 50-e to serve a notice of claim.
In reviewing an application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5), courts are to consider three key factors, namely, "whether claimant has shown a reasonable excuse for the delay, whether the public corporation had actual or constructive notice of the essential facts constituting the claim within 90 days of its accrual, and whether the delay in bringing this claim would substantially prejudice the public corporation in maintaining its defense on the merits" (Matter of Dusch v Erie County Med. Ctr., 184 AD3d 1168, 1169 [4th Dept 2020], citing Matter of Turlington v Brockport Cent. Sch. Dist., 143 AD3d 1247, 1248 [4th Dept 2016]). As Roswell Park is a public authority, the Court's analysis must begin with Public Authorities Law § 3567 (1) (a), which provides that it is a condition precedent to bringing an action that service of a notice of claim be made within the ninety day time limitation of General Municipal Law § 50-e. A claim against Roswell Park for personal injuries must be commenced within one year and ninety days after the happening of the event upon which the claim is based (Public Authorities Law § 3567  [c]; General Municipal Law § 50-e ). This Court does not have discretion to grant leave to serve a late notice of claim if doing so would permit the filing and service of a notice of claim beyond the time prescribed to commence an action against a public authority (CPLR § 201).
In the present action, as movant was unable to obtain her medical records from Roswell Park prior to filing this motion for permission to serve a late notice of claim, we do not know the exact date of movant's admission or discharge other than it began in June of 2018 and she remained there for approximately thirty days (Affidavit of Kevin M. Habberfield, Esq. at paragraphs 3 and 4). Assuming for purposes of this motion that the applicable ninety day time period commenced with movant's discharge from Roswell Park at the end of June 2018, a notice of claim had to be served by no later than the end of September 2018. Movant had one year and ninety days from the end of June 2018 or by the end of September 2019 within which to bring a motion for permission to serve a late notice of claim. As the present motion was not filed until August 4, 2020, it is untimely and must be dismissed unless a legal basis exists that tolled and/or extended the time to commence this action.(1)
The movant first contends that the Governor's Declaration of Disaster Emergency in New York State in Executive Order 202 and continuing orders (Governor's Executive Orders) tolled and extended until at least July 6, 2020, the time for movant to file this motion. However, the Governor's Executive Orders do not apply to the present claim as the applicable statute of limitations had expired months prior to March 20, 2020, the effective date of the first executive order.
Movant next contends that the doctrine of equitable estoppel applies to these facts and that Roswell Park should be estopped from invoking the applicable statute of limitations because it knowingly concealed that movant had been injured as a result of the acts of the nurse and the hospital's negligence. The doctrine of equitable estoppel will apply to prevent a defendant from pleading the statute of limitations where the injured party was induced by fraud, misrepresentation or deception to refrain from filing a timely action (Zumpano v Quinn, 6 NY3d 666 , citing Simcuski v Saeli, 44 NY2d 442, 449 ). Equitable estoppel is considered an extraordinary remedy that should be invoked sparingly and only under exceptional circumstances (Storey v Sum, 151 AD2d 991 [4th Dept 1989]). In such instances, the injured party must demonstrate reasonable reliance on the defendant's misrepresentations (Zumpano, supra at 674, citing Simcuski, supra at 449). In order for equitable estoppel to apply, it is the movant's burden to establish that subsequent and specific actions by the defendant somehow kept her from timely serving a notice of claim (Zumpano, supra at 674). Furthermore, it has been held that equitable estoppel must be established by " 'clear and convincing proof' and . . . 'general accusation[s] of . . . deception not based on personal knowledge' are insufficient" (Dombroski v Samaritan Hosp., 47 AD3d 80 [3d Dept 2007], citing to Central Fed. Sav. v Laurels Sullivan County Estates Corp., 145 AD2d 1, 6 , lv denied 76 NY2d 704 ).
Movant submits as proof of Roswell Park's misrepresentation and concealment a letter dated October 16, 2019 to movant from Roswell Park advising that it had discovered on August 22, 2019 that a nurse had inappropriately accessed medical records of individual patients, which may have included claimant. Movant alleges that this letter is evidence of fraudulent concealment by Roswell Park of the cause of movant's injury in that it did not address Kelsey Mulvey's diversion of pain medication and the injections of contaminated water in place of IV pain medication during movant's admission. Movant states in her affidavit at paragraph 3 that in March of 2020, she first learned of the arrest and indictment of a Roswell Park employee who contaminated injectable narcotics and that this was the first time it had occurred to her that this person may have contaminated her pain medication. It was at this point that movant then met with her attorneys to pursue this claim. Movant's attorney in his affidavit at paragraph 10 alleges that no notice was ever provided about Kelsey Mulvey's actions despite Roswell Park being aware and having previously terminated her employment on July 13, 2018.
In opposition to this motion, Roswell Park's attorney includes a copy of the press release of the United States Attorney for the Western District of New York (U.S. Attorney) dated June 4, 2019 announcing that Kelsey Mulvey was charged in a criminal complaint with illegally obtaining controlled substances by fraud, tampering and violation of the Health Insurance Portability and Accountability Act (HIPAA). This press release added that "[i]n June and July 2018, there was a span of waterborne infections at Roswell Park. The complaint states that six patients allegedly became infected as a result of the defendant replacing medication with contaminated water" (Affidavit of Craig R. Watson, Esq. at Exhibit C). Also included as an additional exhibit was a June 4, 2019 article from the Buffalo News entitled, "Ex-Roswell Park nurse accused of stealing drugs, replacing them with water", which described the U.S. Attorney's criminal charge and Kelsey Mulvey's actions (Affidavit of Craig R. Watson, Esq. at Exhibit D).
Roswell Park's attorney also submitted two affidavits from Roswell Park employees. The first affidavit was of Renee DeWald, a Clinical Nurse Manager who avers that on September 4, 2018, she telephoned movant to inform her of the diversion of pain medication between February and June 2018 and that the diverted pain medication had been replaced with water. Ms. DeWald states that she advised movant that she was identified as a patient who received IV pain medication and was likely one of the patients exposed to contaminated medication. Ms. DeWald also avers that movant indicated during this call that she had not previously been informed about the drug diversion and that they discussed the symptoms associated with the contaminated pain medication, including experiencing chills, sweats and flu like symptoms while at Roswell Park. Finally, Ms. DeWald references an electronic patient record of this September 4, 2018 telephone call, which states that Ms. DeWald spoke with movant about the diversion and that movant stated in response that "Pt stated that she did have symptoms (chills, sweats, etc.) while she was in the hospital. She stated that MD and his team were aware" (Affidavit of Craig R. Watson, Esq. at Exhibit B). Movant avers in her reply affidavit that she was called by someone from Roswell Park about unauthorized access to her medical records but that at no time did anyone tell her that her medications had been diverted and she has no recollection of anyone from Roswell Park telling her that she had been injected with contaminated medication (Movant's Reply Affidavit at paragraphs 2, 5 and 6).
The second affidavit submitted by Roswell Park was of Verita Jones, an executive assistant who averred that on September 10, 2018, a letter was sent to movant in the form attached as Exhibit A to Ms. Jones' affidavit that was sent to the current address for movant then on file with Roswell Park. In summary, this letter dated September 7, 2018 and signed by its chief medical officer and chief of infectious disease advised that based on an investigation conducted, they suspected that one of their staff was diverting IV narcotics from patients and stated that since movant had received IV narcotics at Roswell Park during the period February through June 2018, they were reaching out to advise her of a potential risk of exposure to a water borne bacteria called Sphingomonas. Ms. Jones stated that this letter was returned to Roswell Park by the U.S. Postal Service with the designation, "Return to Sender Non-Deliverable as Addressed Unable to Forward" (Exhibit B). The movant did not receive this letter as a result and does not address it in her reply affidavit.
Accepting the movant's statement in her reply affidavit that no telephone call with Ms. DeWald ever occurred, I still find that movant has failed to present any proof based upon personal knowledge that Roswell Park engaged in improper conduct to induce her by fraud, misrepresentations or deception to refrain from serving a notice of claim. I find that the October 16, 2019 letter from Roswell Park does not establish any intentional misrepresentation, affirmative wrongdoing, fraud or deception. The purpose of this letter was to notify movant that unauthorized access to her medical records may have occurred, whereas the September 7, 2018 letter to movant that was returned to Roswell Park as non-deliverable, specifically addressed the diversion of injectable narcotics and the potential that movant had received these contaminated injections during the course of her hospitalization. The fact that movant did not receive the September 7, 2018 letter or that Roswell Park did not obtain her correct address and mail it a second time does not transform the October 16, 2019 letter into one that was designed to intentionally misrepresent or deceive movant. In any event, by the time movant received the October 16, 2019 letter, the statute of limitations had already expired since more than one year and ninety days had passed since her June 2018 discharge from Roswell Park. The only other act alleged by movant to support her contention that Roswell Park was fraudulently concealing information from her is that she requested her medical records on June 20, 2020, but that they were not provided until after she filed a notice of claim, the present motion and her claim (Movant's Reply Affidavit at paragraph 7). Once again, by the time movant sought these records the statute of limitations had long since expired.
The press release from the U.S. Attorney and the June 4, 2019 article from the Buffalo News, regardless of whether movant was aware of them, constitute some evidence of the fact that knowledge of Kelsey Mulvey's actions was in the public domain and counters movant's argument that Roswell Park was misrepresenting or fraudulently concealing this information from movant or the general public. Movant offers no subsequent and specific acts by Roswell Park that kept her from timely bringing this action (see Putter v North Shore Univ. Hosp., 7 NY3d 548, 552-553 ). As the movant's affidavit and reply affidavit do not set forth specific allegations stating how fraud, misrepresentation and deception occurred and how it was that she relied to her detriment upon these affirmative acts, movant has not met her burden to present clear and convincing proof. As such, the doctrine of equitable estoppel cannot apply to deny Roswell Park's use of the statute of limitations defense.
Movant raises two new arguments in her reply papers. The defendant rightfully objects that movant is raising these arguments for the first time in her reply papers. It has been consistently held that new arguments in reply papers are not properly before the court as the function of reply papers is to address arguments in opposition to the position originally taken by the movant and not to permit the movant to introduce new arguments (Dunn v County of Niagara, 161 AD3d 1555 [4th Dept 2018]; Mikulski v Battaglia, 112 AD3d 1355 [4th Dept 2013]). Although the Court would normally decline consideration of movant's arguments raised for the first time in her reply papers, counsel entered into a stipulation permitting Roswell Park's attorney additional time to submit sur-reply papers and for this reason, the Court finds that no prejudice has resulted and will consider the new legal arguments raised in movant's reply papers.
Movant first contends that CPLR 214-c, more commonly known as the "toxic tort" statute of limitations, applies to these facts and extends movant's time in which to serve a notice of claim. This statute is expressly limited to cases of injuries that are "caused by the latent effects of exposure to any substance or combination of substances." Movant's attorney alleges in his reply affidavit that movant was injured after she was unknowingly injected with an unauthorized substance, i.e., the contaminated water in place of the IV pain medication, and that at no time was she ever informed by Roswell Park that she had been exposed to this substance. CPLR 214-c has been held to apply to any substance in any form (Prego v City of New York, 147 AD2d 165, [2d Dept 1989]). As such, the injection of the contaminated water in place of the IV pain medication constitutes a "substance" for purposes of CPLR 214-c.
Roswell Park's attorney argues that the statute does not apply as movant does not claim an injury that was caused by the latent effects of a substance. In support of this contention, the defendant refers to movant's allegations in the notice of claim, claim and in her affidavit in which she asserts that she suffered immediate symptoms of unrelenting pain and suffering as a result of being administered the tampered IV pain medication. However, the Court of Appeals has held that the term "latent" in this statute means that even a few hours of latency is enough to justify the extension of the statute of limitations authorized by that subdivision (Giordino v Market Am., Inc., 15 NY3d 590, 599 ). Accordingly, I find that movant has alleged an injury caused by the latent effects of a substance within the meaning of CPLR 214-c.
The time period to initiate a claim under this statute is set forth at CPLR 214-c (2), and it has been held that a claim begins to accrue "when the injured party discovers the primary condition on which the claim is based" (Matter of New York DES Litigation, 89 NY2d 506, 509 ) and that "[a]ll that is necessary to start the limitations period is that [claimant] be aware of the primary condition for which damages are sought" (Whitney v Quaker Chemical Corp., 90 NY2d 845 ). This statute further provides at CPLR 214-c (3) that when a notice of claim is required, the claim shall accrue on the earlier of the date of discovery of the injury caused by the latent exposure to a substance or the date when through the exercise of reasonable diligence the injury should have been discovered.
The movant states that she first learned of the arrest and indictment of Kelsey Mulvey in March of 2020 and that this was the first time that it occurred to her that this person may have contaminated her medication. Movant states in her reply affidavit that she then retained her attorney, who advised her of the 90 day notice of claim requirement (Movant's Reply Affidavit at paragraph 3). The movant's attorney states that his office was retained on March 3, 2020 and that movant was unaware of her exposure to the toxic substance until March of 2020 (Affidavit of Kevin M. Habberfield, Esq. at paragraph 3 and Reply Affidavit at paragraph 16). As a result, movant contends that the accrual date should not commence until at least March 3, 2020 and that the Governor's Executive Orders thereafter tolled and further extended her time in which to serve the notice of claim and file the present motion.
In opposition, Roswell Park contends that the discovery of the injury coincided with her hospitalization in June of 2018 as claimant suffered immediate injuries of severe, unrelenting pain and suffering, that she then contracted an infection from contaminated water in her IV pain medication, and did not allege that these symptoms continued after she was discharged (Sur-Reply Affidavit of Craig R. Watson, Esq. at paragraph 11 and 13). As such, Roswell Park contends that the discovery of the alleged injury or its symptoms that triggers the running of the statute of limitations occurred during her movant's hospitalization, not when she may later have discovered the alleged cause of the injury.
The Court agrees that the application of CPLR 214-c (3) requires the accrual of this claim to commence at the time that the physical condition was discovered, i.e., when the infection was treated during her hospitalization in June 2018. Movant seeks to apply the date that she later discovered the cause of the infection, however, CPLR 214-c (3) makes no mention and does not encompass claims based upon the discovery of the cause of the injury.
For claims alleging that the accrual date should be measured from the time of the discovery of the cause of the injury, CPLR 214-c (4) provides in relevant part that the claimant is also required to allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of her injury had not been discovered, identified or determined prior to the expiration of the period within which the action or claim would have been authorized, i.e., one year and ninety days in the present claim. Movant makes no showing pursuant to CPLR 214-c (4) and has presented no proof that scientific or medical knowledge and information prevented a diagnosis of a water borne bacterial infection to a date beyond movant's hospitalization in June of 2018. Furthermore, movant's contention that the accrual date of this claim should be extended until the time when she and her attorney were able to ascertain the cause of the injury is not supported in case law (see Giordano, supra at 601).
As such, even if CPLR 214-c is applied to this claim, movant was still required to serve a notice of claim within 90 days of her discharge from Roswell Park in June of 2018 or bring a motion for leave to serve a late notice of claim within one year and ninety days or by September 2019. Accordingly, applying CPLR 214-c, this motion remains untimely.
The movant's second argument is that the continuous treatment doctrine applies and as such, the statute of limitations was tolled until her course of cancer treatment with Roswell Park ends. In support of this position, movant states in her reply affidavit that she is still a patient of Roswell Park for cancer treatment. However, the continuous treatment doctrine is applicable only in medical malpractice actions and the proposed notice of claim does not include allegations sounding in medical malpractice, only claims of ordinary negligence. Furthermore, it is well established that the continuous treatment doctrine does not apply unless there has been a course of treatment established with respect to the condition that gives rise to the lawsuit (Trimper v Jones, 37 AD3d 1154 [4th Dept 2007]). The continuous treatment doctrine does not apply since movant does not offer any evidence that she continues to treat at Roswell Park for the infection allegedly caused by the injection of contaminated water in June 2018 or that Roswell Park undertook with movant a regularly scheduled course of treatment for the infection following her discharge in June 2018 (see Domena v New York City Health & Hosps. Corp., 259 AD2d 462 [2d Dept 1999]). As such, I do not find that the continuous treatment doctrine applies to toll the statute of limitations for the proposed notice of claim.
For all of the reasons stated above, movant's defense of equitable estoppel will not bar Roswell Park from asserting the ninety day statute of limitations for serving a notice of claim or the one year and ninety day statute of limitations for filing and serving a claim or for bringing a motion for permission to serve a late notice of claim; that CPLR 214-c (3) is applicable but did not further extend the applicable statute of limitations; and that the continuous treatment doctrine does not apply to extend and/or toll the statute of limitations. Finally, as the movant failed to bring this motion within the time period for which an action against Roswell Park may be commenced, the Court need not address the arguments relating to the three key factors set forth at General Municipal Law § 50-e (5). Accordingly, movant's motion for permission to serve a late notice of claim is denied.
March 5, 2021
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1) Notice of motion and affidavit of Kevin M. Habberfield, Esq.. sworn to June 30, 2020 with annexed Exhibits A-B; Affidavit of Penny L. Nelson, sworn to June 26, 2020;
2) Affidavit in opposition of Craig R. Watson, Esq., sworn to October 22, 2020 with annexed Exhibits A-F; Affidavit of Renee DeWald, sworn to September 29, 2020 with annexed Exhibit A; Affidavit of Verita Jones, sworn to October 19, 2020 with annexed Exhibit A;
3) Reply affidavit of Kevin M. Habberfield, Esq., sworn to December 8, 2020 with annexed Exhibits A-C; Affidavit of Penny L. Nelson, sworn to December 8, 2020;
4) Sur-reply affidavit of Craig R. Watson, Esq. sworn to January 13, 2021 with annexed Exhibits A-C; Affidavit of Melissa Wilbert sworn to January 13, 2021 with annexed Exhibits A-B; Attorney Affidavit of Michael B. Sexton. Esq., sworn to January 12, 2021 with annexed Exhibits A-B; and
5) Memorandum of Law of Craig R. Watson, Esq., dated October 22, 2020.
1. The Court agrees with Roswell Park that the notice of claim served on July 6, 2020 is a nullity as it was served well beyond the 90 day time period specified by General Municipal Law § 50-e and the Governor's Executive Orders do not apply to toll and extend the time to serve this notice of claim as the ninety day time period expired long before March 20, 2020, the effective starting date of these executive orders (J.H. v New York City Health & Hosps. Corp., 169 AD3d 880, 882 [2d Dept 2019]).