Opinion
# 2012-029-001 Claim No. 118411 Motion No. M-79508 Cross-Motion # 2012-029-001 Claim No. CM-79796 # 2012-029-001 Claim No. CM-80535
03-23-2012
BENNETT v. THE STATE OF NEW YORK
Synopsis
Continuous treatment inapplicable in view of 11 month period where no treatment was sought or received. medical malpractice claim dismissed as late. Case information
UID: 2012-029-001 Claimant(s): MICHAEL BENNETT Claimant short name: BENNETT Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118411 Motion number(s): M-79508 Cross-motion number(s): CM-79796, CM-80535 Judge: STEPHEN J. MIGNANO Claimant's attorney: ANDREW F. PLASSE, ESQ. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: By: John M. Healey, Assistant Attorney General Third-party defendant's attorney: Signature date: March 23, 2012 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In this claim seeking damages for medical negligence and malpractice, claimant moves for an order striking defendant's sixth affirmative defense - that the court lacks jurisdiction because claimant failed to serve and file a claim or serve a notice of intention within 90 days after the claim accrued, as required by Court of Claims Act sections 10 and 11. Defendant cross moves for summary judgment for the reason set forth in the defense at issue; i.e., that the claim was late and the court therefore lacks jurisdiction, and claimant cross-moves for permission to file an amended claim.
The claim contains three causes of action, all arising from events occurring between August 1, 2008 and September 12, 2008 while claimant was an inmate at Sing Sing Correctional Facility. Claimant alleges that he developed "an unexplained and never ending erection that caused him great distress" (Claim, par. 22) - a condition known as priapism - on Auguust 1, 2008 and that such was the result of defendant's employees' negligent prescription of Abilify, a drug claimant alleges had the known side effect of causing priapism. The claim further alleges that claimant was admitted to Mt. Vernon Hospital on August 8, discharged on August 9 and was readmitted on August 12 and underwent two surgical procedures in the subsequent days.
Claimant's first cause of action alleges that defendant's employees were negligent in prescribing and administering Abilify, given claimant's underlying condition and the propensity to cause priapism. The second cause of action alleges a delay in properly diagnosing and obtaining treatment for claimant's condition between August 8 and August 12, 2008 and the third cause of action alleges the defendant's employees delayed, from August 16 to September 8, 2008, in obtaining proper treatment for a post-surgical infection, necessitating a further admission to Mt. Vernon Hospital, from which he was discharged back to the correctional facility on September 12, 2008 (Exhibit D to Notice of Motion).
In support of his motion to strike the jurisdictional defense, claimant notes that he served a notice of intention to file a claim on the Attorney General by certified mail, return receipt requested on September 8, 2009 and he contends that he "has had continuous treatment since August 5, 2008, including treatment during the month prior to his filing the Notice of Intention" (Supporting Affirmation, par. 3).
Opposing the motion to strike the defense, and in support of the cross-motion to dismiss for lack of jurisdiction, defendant contends, correctly, that the claim accrued on September 12, 2008 at the latest and that the undisputed failure to serve the notice of intention until after expiration of the 90-day jurisdictional period establishes prima facie that the claim is jurisdictionally infirm (Baptiste v Harding-Marin, 88 AD3d 752; Stewart v Cohen, 82 AD3d 874), with the burden of proof shifting to the claimant to establish a triable issue of fact as to the existence and applicability of a toll of the limitations period (see Cox v Kingsboro Medical Group, 88 NY2d 904). Here, claimant contends that application of the continuous treatment doctrine to the relevant facts requires the conclusion that the claim was timely interposed.
"The continuous treatment doctrine tolls the Statute of Limitations for a medical malpractice action 'when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint' (Borgia v City of New York, 12 NY2d 151, 155). Where there is a direct physician-patient relationship, continuous treatment exists only 'when further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past' (Richardson v Orentreich, 64 NY2d 896, 898-899).(Cox v Kingsboro Medical Group, 88 NY2d 904, 906).
Resolution of the legal issue is based on analysis of the nature and extent of the contact between claimant and defendant's medical providers during the period from September 12, 2008, the ostensible accrual date, and September 8, 2009, the date claimant's notice of intention was served. The medical records submitted by claimant (excerpts from his Ambulatory Health Records, Exhibit B to Affirmation in Opposition to Cross-Motion and Cross-Motion to Amend Claim) covering this period reflect the following:
1. January 22, 2009: "Pt. seen briefly after phych meeting re: sexual function. Pt. asked whether he still gets erections, is able to masturbate or ejaculate. Pt. says negative to all those questions". The clinician who wrote the note observed that claimant's decreased sexual function could be due to several factors, including his psychiatric condition.(id., pp 1-2).
2. April 6, 2009: Claimant requested medication for razor bumps on the back of his head. There is no mention in the note of any other problem.
3. August 6, 2009: Claimant was seen by a nurse and stated "I can't get an erection." He was scheduled for a further evaluation, which took place the next day. The clinician wrote: Discussed case with FHSD who was advised that no further [treatment] can be done in this case. Letter to I/M about decision."
In addition to claimant's Ambulatory Health Records for the year at issue, claimant submits an affirmation from a urologist who describes himself as an Independent Urology Medical Reviewer. The doctor opines, based on his review of claimant's records, that claimant's priapism was the cause of his erectile dysfunction, that it is a permanent condition, and that the treatment rendered to claimant "from January 22, 2009 to October 13, 2009, with his complaints of a flaccid penis, an inability to obtain an erection, and a diagnosis as status/post history Priapism, as set forth in Mr. Bennett's Ambulatory Health Records, is continuous treatment for the original condition of his Priapism that he was surgically treated for in August and September of 2008" (Affirmation of Charles Edward Jennings, M.D., par. 13).
To the extent that the doctor's affirmation is offered to establish that treatment for erectile dysfunction is, under these circumstances, treatment for the "same condition" as claimant's original treatment for priapism, since the erectile dysfunction (accepting claimant's essential allegations on the merits as true for the purpose of this motion) arose from the allegedly negligent treatment for priapism, the court has no problem with the doctor's conclusion. Where his affirmation fails is in his addition of the word "continuous" to his opinion. Whether the treatment rendered to claimant was "continuous" within the meaning of New York law for the purpose of applying the limitations period is a legal question, not a medical one, a question to which the doctor's opinion is irrelevant. Moreover, the contention that the submitted medical records - containing merely two references to claimant's condition, no treatment whatsoever, and no request for treatment until eleven months after the last treatment date - constitute a "continuous" course of treatment over a one-year period is unsupportable on its face.
Claimant's records contain none of the typical indicia of continuous treatment, no scheduling of appointments, no request for treatment, nothing other than an incidental inquiry from defendant more than four months after his last treatment (by which time the 90-day period in which to file a claim had already expired) and a request for treatment almost one full year later. This is more than a mere interruption in treatment; this is a strong indication that no further treatment was anticipated by either defendant or claimant once he was returned from Mt. Vernon Hospital to the correctional facility on September 12, 2008. And, in fact, no further treatment was sought by claimant until eleven months later. These facts are not indicative of a continuing relationship with respect to treatment of claimant's sexual functioning, they in fact establish that there was no continuous treatment and that none of the policies underlying the continuous treatment are implicated in this case (see Young v New York City Health and Hosps. Corp., 91 NY2d 291; Baptiste v Harding-Marin, supra, 88 AD3d 752; Stewart v Cohen, 82 AD3d 874). Accordingly, claimant's motion to dismiss the jurisdictional defense is denied, and defendant's cross-motion to dismiss the claim for lack of jurisdiction is granted. Claimant's application to interpose an amended claim specifically alleging continuous treatment is denied as unnecessary (the issue is one of substance, not pleading), without evidentiary support and moot, in light of the court's finding that the doctrine is inapplicable in this case.
March 23, 2012
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers considered:
Notice of Motion, Affirmation and Exhibits
Notice of Cross-Motion (CM-79796), Affirmation and Exhibits
Affirmation in Opposition to Cross-Motion and Cross-Motion to Amend Claim (CM-80535), Affirmation and Exhibits
Defendant's Reply Affirmation
Claim, Answer