Motion for permission to serve and file a late claim alleging medical malpractice granted.
|Claimant short name:||THOMPSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the State of New York as the only proper Defendant.|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Simonson Goodman Platzer, PC
By: Edward S. Goodman, Esq.
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Joseph D. Callery, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 10, 2021|
|See also (multicaptioned case)|
Movant Melody Thompson seeks permission to serve and file a late claim for medical malpractice. Specifically Movant alleges that Defendant deviated from the accepted standard of medical practice in treating her left foot during her admission at SUNY Upstate Medical University Hospital ("Upstate") from October27, 2019 to November 16, 2019 following a fall from a ladder (see Affirmation of Edward S. Goodman, Esq., Ex A [Proposed Claim] ¶¶ 4-6). Specifically, Movant claims Upstate was, among other things, "negligent in the performance of the surgery on October 28, 2019; in placing too tight a cast/splint following the October 28th surgery; in failing to timely respond to [Movant]'s complaints of pain; [and] in failing to timely remove the cast/splint" (Affirmation of Edward S. Goodman, Esq. ¶ 8). As a result of the alleged malpractice, Movant claims she "suffered a pressure sore/ulcer/wound to her left foot requiring multiple surgeries/procedures, prolonged hospitalizations, and multiple hospitalizations" (Proposed Claim ¶ 6). Defendant opposes the motion.
Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 , [3-b]).
The Court has discretion to permit the filing of a late claim pursuant to Court of Claims Act §10 (6) provided that the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed claim alleges a cause of action for medical malpractice which carries a statute of limitations of two years and six months (see CPLR 214-a). Because it is undisputed that the proposed claim accrued no later than November 16, 2019, the proposed claim is timely.
Upon satisfaction that the proposed claim is timely, the Court will consider six statutory factors set forth in Court of Claims Act § 10 (6) as well as other relevant factors in determining whether to grant the late claim (see Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Although the movant need not satisfy every statutory factor enumerated in Court of Claims Act § 10 (6) (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ), the ultimate burden rests with the movant to persuade the Court to grant the late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797, 804 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant contends that her physical condition prevented her filing this Claim before the 90-day statutory period expired (see Affirmation of Edward S. Goodman, Esq., ¶ 13). Courts have held that complete physical disability is not a prerequisite to the finding of a reasonable excuse (see e.g. Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]; Carmen v State of New York, 49 AD2d 965, 966 [3d Dept 1975]; Stabile v State of New York, 12 AD2d 698, 698-699 [3d Dept 1960]).
Here, Movant, a Massachusetts resident, alleges that following her discharge from Upstate she was seen by Dr. Jennifer Dressel on November 18, 2019 who removed the cast placed by Upstate (see Affirmation of Edward S. Goodman, Esq., Ex C [Movant's Aff] ¶ 6). Dr. Dressel referred Movant to the emergency department at Nashoba Valley Medical Center in Ayer, Massachusetts where she was an inpatient for four days (Movant's Aff ¶ 6; see Affirmation of Edward S. Goodman, Esq., Exs M, N ). Movant was then discharged from Nashoba to Apple Valley Rehabilitation where she stayed for eight days before being discharged to her home (Movant's Aff ¶ 6; Affirmation of Edward S. Goodman, Esq., Ex Q at 4).
Movant states that upon returning home, she "was home or bed bound, other than medical appointments for months" (Movant's Aff ¶ 10). Movant explains that in addition to her foot injury, her "left arm was fractured, and confined to a sling" rendering her "unable to use crutches at all" (id.). Movant was confined to a wheel chair and was prohibited her from doing regular daily activities such as using the bathroom, eating, getting out of bed, and mobilizing without the assistance of another person (see id.; Affirmation of Edward S. Goodman, Esq., Ex L at 7). Additionally, Movant has had visiting nurses and home health aides come to her home to assist her since she was discharged from Upstate (see Movant's Aff ¶ 8). Additionally, Movant has been prescribed and administered narcotic medications, including fentanyl and oxycodone for the pain in her foot (see id. ¶ 9; Affirmation of Edward S. Goodman, Esq., Ex M at 78).
The Court concludes the severity of Movant's injuries, as detailed by Movant and supported by medical records and images, presents a reasonable excuse for failing to timely file this claim (see Stabile, 12 AD2d at 698-699; Bloom v State of New York, 5 AD2d 930, 930-931 [3d Dept 1958]; Jamieson v State of New York, UID No. 2000-007-005 [Ct Cl, Bell, J., Apr. 11, 2000]; cf. Crane v State of New York, 29 AD2d 1001, 1002 [3d Dept 1968] [finding no reasonable excuse where "there is no assertion that [the movant] was bed-ridden, confined to the hospital, in severe pain or under continuous treatment with strong drugs"]). Accordingly, this factor weighs in Movant's favor.
The next three factors to be addressed--whether Defendant had notice of the essential facts constituting the Claim, whether Defendant had an opportunity to investigate the circumstances underlying the Claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant--are interrelated and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]).
Movant argues Defendant has notice of the essential facts constituting the claim by reason of the fact that Upstate possesses Movant's medical records upon which the malpractice claim is based (see Affirmation of Edward S. Goodman, Esq. ¶ 14). Although Defendant concedes that it will not be prejudiced due to the existence of medical records (see Affirmation of Joseph D. Callery, Esq., Assistant Attorney General ¶ 13), Defendant argues the fact that Upstate possesses medical records does not, by itself, demonstrate that it had notice of the essential facts constituting the claim and an opportunity to investigate (see Lerner v State of New York, 72 AD3d 406, 407 [1st Dept 2010], lv denied 15 NY3d 703 ; Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]).
Courts have held that a defendant has ample opportunity to investigate the claim where medical records detail the alleged malpractice and the delay in making the late claim application is minimal (see e.g. Bost v State of New York, UID No. 2013-041-001 [Ct Cl, Milano, J., Jan. 4, 2013]; see also Matter of Hughes v State of New York, 25 AD3d 800, 800 [2d Dept 2006]).
Here, the instant application was made just over one year after Movant was discharged from Upstate. It appears beyond dispute that Defendant possesses medical records detailing Upstate's treatment of Movant, which is the subject of this proposed claim. Additionally, as Movant notes, the orthopedic residents who treated her are still employed by or otherwise affiliated with Upstate (see Lindner v Roswell Park Cancer Institute Corp., UID No. 2004-034-563 [Ct Cl, Hudson, J., Sept. 13, 2004]). Consequently, the Court concludes, on balance, the factors of notice, opportunity to investigate, and prejudice weigh in Movant's favor.
The fifth factor to be considered is whether Movant has another remedy available. Defendant does not contest that Movant has no alternative remedy available (see Lall v State of New York, UID No. 2020-038-583 [Ct Cl, DeBow, J., Dec. 9, 2020] ["claims alleging medical malpractice and negligence claims against medical providers employed by [the State] for actions or omissions within the scope of their employment must be brought in the Court of Claims" (internal quotation marks and citations omitted)]). Thus, this factor weighs in Movant's favor.
The last and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for "it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the [movant's] motion" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], affd sub nom. Donald v State of New York, 17 NY3d 389  [internal quotation marks and citation omitted]). It is the movant's burden to show that there is reasonable cause to believe that a valid cause of action exists and that the claim is not patently groundless, frivolous or legally defective (see Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Although this standard places a heavier burden upon a party who has filed late, it does not require a movant to definitively establish the merit of the claim or to overcome all legal objections before the Court will permit the filing of a late claim (see Matter of Santana, 92 Misc 2d at 11-12).
"The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" (Gilmore v Mihail, 174 AD3d 686, 687 [2d Dept 2019]; see Snyder v Simon, 49 AD3d 954, 956 [3d Dept 2008]). "Whether the claim is grounded in negligence or medical malpractice, '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case'"(Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 , quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 ; Trottie v State of New York, 39 AD3d 1094, 1095 [3d Dept 2007]).
It is well settled that "[g]eneral allegations of medical malpractice, [which are] merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient" to state a prima facie case (Alvarez v Prospect Hosp., 68 NY2d 320, 325 ). Thus, "even with an affidavit from a doctor, merit may be absent when the submission is pro forma and lacks 'some explanation as to what was done wrong and why it was a departure from good and accepted medical standards'" (Hamilton v State of New York, UID No. 2012-016-032 [Ct Cl, Marin, J., July 18, 2012], quoting Favicchio v. State of New York, 144 Misc 2d 212, 214 [Ct Cl 1989]).
In support of her application, Movant submits an affidavit from an expert orthopedic surgeon.(2) Movant's expert opines that Movant's complaints of pain following her surgery on October 28, 2019 were "beyond the degree of pain that would be expected following the surgery performed and warranted further investigation, including, but not limited to the removal of the cast/splint" (Physician Aff ¶ 11). Movant's expert opined that Upstate"ma[de] the cast/splint too tight, and/or us[ed] insufficient padding, which lead to ischemia and the development of the pressure sore/ulcer/wound" (id. ¶ 18[a]-[b]). Movant's expert also concluded to a reasonable degree of medical certainty that Upstate departed from the accepted standard of care by "fail[ing] to timely remove the cast to inspect [Movant's] foot/ankle due to her complaints of pain" (id. ¶ 18[c]-[d]). This failure to investigate Movant's complaints, the expert opined, "resulted in the ischemia continuing unabated for days" (id.).
Movant's expert notes the cast/splint was not removed until November 8, 2019, shortly before a second surgery on Movant's foot (see id. ¶ 12). Movant's expert affirms that photographs of Movant's foot taken after the cast was removed but prior to the second surgery indicates "she already had a pressure ulcer/sore/wound on the medial side of her heel" (id. ¶ 13). Movant's expert highlights that Upstate's records are "devoid of any mention of the existence of the pressure ulcer--despite the photographic evidence that it existed" (id. ¶ 14). Movant's expert also opines Upstate "should not have re-casted/splinted the left foot/ankle" following the second surgery due to the presence of the wound (id. ¶ 18 [e]-[f]). Movant's expert concludes that Upstate's departure of accepted standard of medical practice led to the development of the wound and subsequent surgeries (see id. ¶ 18 [g]).
Contrary to Defendant's contention, the opinion of Movant's expert is not conclusory and is based upon his review of Movant's medical records, including "the Upstate . . . chart (and films) for the October/November 2019 admission, the medical records of Drs. Hans Van Lancker and Harry Schneider and multiple photographs of [Movant's] left foot at various stages of her care and treatment" (id. ¶ 4). Each of the records relied upon by Movant's expert in formulating the opinion have been provided by Movant in support of her motion (see Affirmation of Edward S. Goodman. Esq., Exs B, E-H, K-Q). The fact that these medical records are uncertified does not preclude this Court from considering same in evaluating the merit of this proposed claim (see Andrews v State of New York, UID No. 2012-049-020 [Ct Cl, Weinstein, J., Apr. 23, 2012] ["Certification is relevant to the admissibility of a hospital record at trial under CPLR § 4518, but there is no requirement that evidence must be in admissible form to warrant consideration on a motion to file a late claim"]; see also Davis v State of New York, UID No. 2012-018-327 [Ct Cl, Fitzpatrick, J., Sept. 21, 2012]; O'Shea v State of New York, Motion No. M-59853 [Ct Cl, Marin, J., Oct. 19, 1999], affd 278 AD2d 237 [2d Dept 2000]).
Consequently, the Court concludes Movant has set forth sufficient facts to support at least a potentially meritorious claim for medical malpractice.
Therefore, upon balancing all of the factors in the Court of Claims Act section 10 (6), it is hereby:
ORDERED Motion No. M-96262 is granted; and it is further
ORDERED that within sixty (60) days of the date of filing of this Decision and Order, Movant shall file with the office of the Clerk of the Court the proposed Claim against the State of New York, pay the filing fee pursuant to Court of Claims Act § 11-a, and serve a copy of the proposed Claim upon the New York State Attorney General in accordance with Court of Claims Act §11 (a) (ii); and it is further
ORDERED that the documents submitted by claimant, under seal, for in camera review by this Court in connection with this application shall remain sealed.
February 10, 2021
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
(1) Notice of Motion, dated November 30, 2020.
(2) Affirmation of Edward S. Goodman, Esq., dated November 30, 2020, with attachments.
(3) So-Ordered Letter, dated January 11, 2021.
(4) Un-redacted Physician Affidavit, sworn to on November 23, 2020.
(5) Physician Curriculum Vitae.
(6) Affirmation of Joseph D. Callery, Esq., Assistant Attorney General, dated January 27, 2021.
(7) Reply Affirmation of Edward S. Goodman, Esq., dated January 28, 2021.
2. The expert's name was redacted in the copy of the motion served upon Defendant and filed with the Clerk of the Court (see Affirmation of Edward S. Goodman, Esq., Ex D [Physician Aff]. By so-ordered letter dated January 11, 2021, the Court directed Movant to submit the name and qualifications of the expert for an in camera review in connection with this motion (see So-Ordered Ltr, dated Jan. 11, 2021; see also Hogan v State of New York, UID No. 2007-009-030 [Ct Cl, Midey, Jr., J., Oct. 1, 2007]; Peralta v State of New York, UID No. 2005-036-100 [Ct Cl, Schweitzer, J., Sept. 6, 2005]). Movant provided the Court the un-redacted affidavit and the expert's curriculum vitae by email dated January 11, 2021.