Opinion
# 2018-044-567 Claim No. 131768 Motion No. M-92646
11-07-2018
MARGUERITTE BENOIT as Administrator of the Estate of JERRY P. BENOIT v. THE STATE OF NEW YORK
RAWLINS LAW, PLLC BY: Gary N. Rawlins, Esq., of counsel HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
Motion for permission to late file for pain and suffering and wrongful death in inmate suicide situation denied without prejudice. The cause of action for medical malpractice was not supported by either expert testimony or medical records, and the proposed claim did not establish even the initial appearance of merit.
Case information
| UID: | 2018-044-567 |
| Claimant(s): | MARGUERITTE BENOIT as Administrator of the Estate of JERRY P. BENOIT |
| Claimant short name: | BENOIT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131768 |
| Motion number(s): | M-92646 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | RAWLINS LAW, PLLC BY: Gary N. Rawlins, Esq., of counsel |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 7, 2018 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, as administrator of the estate of her son, Jerry P. Benoit (Decedent), moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6) to recover for pain and suffering as well as wrongful death resulting from Decedent's death. Decedent was found hanging in his Special Housing Unit cell on July 26, 2016, while he was in the custody of the Department of Corrections and Community Supervision at Elmira Correctional Facility (Elmira). Defendant State of New York (defendant) opposes the motion.
Before addressing the merits of the motion, some background information is necessary. On November 7, 2017, claimant served defendant with a document entitled "notice of claim" which the parties have treated as a notice of intention to file a claim. In this document, claimant alleges that on July 26, 2016, Decedent died as the result of an apparent suicide allegedly due to defendant's negligence in, among other things, failing to properly monitor Decedent and to provide life saving actions upon the discovery of him hanging in his cell. She further asserts that defendant failed, among other things, to take proper medical and psychological histories, to properly diagnose and treat Decedent's medical and mental conditions, and to refer him for consultations with appropriate medical personnel. On July 26, 2018, claimant filed and served Claim No. 131768 alleging causes of action for medical malpractice and negligence. Defendant filed and served an answer, asserting several affirmative defenses, including that the claim is untimely.
In order to determine whether the motion for late claim relief is necessary, the Court must first determine whether Claim No. 131768 is timely. In an action to recover damages for personal injuries - whether caused by the intentional or unintentional (negligent) conduct of an officer or employee of the State - a claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3], [3-b]). If a notice of intention is timely served, the time in which to file and serve a claim asserting causes of action for negligence (including medical negligence) and medical malpractice as in this instance, is extended to two years after accrual (Court of Claims Act § 10 [3]).
The causes of action for medical malpractice and negligence alleged in Claim No. 131768 accrued at the latest, when Decedent died on July 26, 2016. In order for these causes of action to be timely, a notice of intention must have been served or a claim filed and served by October 24, 2016. The notice of intention served on November 7, 2017 was not timely with respect to these two causes of action. Accordingly, the time in which to file and serve a claim containing these causes of action was not extended and Claim No. 131768 filed and served on July 26, 2018 is untimely on its face with respect to the medical malpractice and negligence causes of action. Although defendant has not specifically moved to dismiss the claim as untimely as it pertains to these causes of action, the "[f]ailure to comply with either the filing or service provisions of the Court of Claims Act results in a lack of subject matter jurisdiction" (Tooks v State of New York, 40 AD3d 1347, 1348 [3d Dept 2007], lv denied 9 NY3d 814 [2007]) which the Court may address sua sponte (Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 670-671 [3d Dept 1997]). Defendant properly preserved its objection to the timeliness issues as affirmative defenses in its answer pursuant to Court of Claims Act § 11 (c) (i). Accordingly, the causes of action alleging negligence (including medical negligence) and medical malpractice are hereby dismissed from Claim No. 131768.
With respect to a cause of action for wrongful death, Court of Claims Act § 10 (2) provides that a claim against the State must be filed and served, or a notice of intention served within 90 days after the appointment of a personal representative of a decedent. In any event, a claim for said cause of action must be filed and served within two years of a decedent's death (Court of Claims Act § 10 [2]). Claimant was appointed administrator on August 14, 2017. In order to be timely, a claim asserting a cause of action for wrongful death must have been filed and served or a notice of intention served by November 13, 2017. In this case, claimant timely served a notice of intention on November 7, 2017 and the time in which to file and serve the claim for wrongful death was extended until July 26, 2018. Accordingly, Claim No. 131768 which was filed and served on July 26, 2018 is timely solely with respect to the wrongful death cause of action.
Because the 90th day after August 17, 2017 was Sunday, November 12, 2017, the time to serve the notice of intention or to file and serve the claim was extended until the next business day, which was November 13, 2017 (General Construction Law § 25-a [1])
The Court will now address the merits of claimant's motion for late claim relief with respect to the medical malpractice and negligence causes of action. A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). The applicable statute of limitations for a medical malpractice cause of action is 2½ years from the date of accrual (CPLR 214-a) while the statute of limitations for a negligence cause of action is 3 years (CPLR 214 [5]). Accordingly, this motion, personally delivered to the Attorney General's Office on July 26, 2018, is timely with respect to any medical malpractice cause of action accruing on or after January 26, 2016 and any negligence cause of action accruing on or after July 26, 2015 (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]).
Although it is possible that the continuous treatment doctrine may apply to conduct prior to January 26, 2016, the Court need not address such issue in light of its determination infra.
Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act
§ 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and
6) claimant has any other available remedy.
Claimant indicates that the delay in this case is excusable because of the typographical error in entitling the notice of intention as a notice of claim. It is unclear how this error caused a delay, since both parties treated the document as a notice of intention. Moreover, as set forth previously, the notice of intention is timely only with respect to a cause of action for wrongful death. Ignorance of the requirements of the Court of Claims Act is not an adequate excuse for claimant's delay in timely serving a notice of intention or timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]). Accordingly, this factor weighs against claimant.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. For the purposes of this motion, defendant concedes that it had notice of the essential facts constituting the claim as well as an opportunity to investigate and that there is no prejudice to the State. Thus, these three factors weigh in favor of claimant.
Affirmation of Assistant Attorney General (AAG) Douglas H. Squire, dated Sept. 5, 2018, in Opposition to Motion, ¶¶ 18-19.
Another factor to be considered is whether claimant has any other available remedy. Claimant is seeking damages allegedly suffered as a result of Decedent's suicide while in custody at a State Correctional Facility. The Court of Claims is the proper forum for this action. This factor also weighs in favor of claimant.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [Ct Cl 1992]).
In order to establish the appearance of merit in a medical malpractice claim, claimant must show that defendant departed from the accepted standard of medical care, and that said departure was a proximate cause of the injury (Mullally v State of New York, 289 AD2d 308 [2d Dept 2001]). General allegations of medical malpractice which are not supported by competent evidence are insufficient (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]), and "expert medical evidence clearly is required to demonstrate that the diagnosis and treatment rendered to claimant by state personnel [or the lack thereof] departed from accepted medical practices and standards" (Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]).
As her proposed claim pertains to any cause of action for medical malpractice, claimant alleges that as a child, Decedent had tuberculosis (TB) and that defendant negligently diagnosed him in March 2015 as having active TB rather than inactive TB. Claimant states that defendant has indicated that a TB test administered on February 5, 2015 was positive and as a result, Decedent was prescribed 76 doses of Isoniazid (INH) on June 5, 2015. Claimant asserts that defendant administered a dosage of INH which was significantly higher than the recommended amount. Claimant further states that defendant should have know that patients with a prior psychiatric history, like the Decedent, could suffer mild cerebral toxicity which often resulted in depression, mild confusion, impairment of fine discriminatory functions of the brain, and suicidal tendencies. Claimant asserts that in light of the increase in suicidal tendencies caused by the medication, defendant's failure to monitor Decedent contributed to his suicide. Claimant also notes that even though Decedent reported a history of mental illness to defendant on February 2, 2015, he was prescribed both Elavil and Neurontin. She asserts that prescribing these two drugs is contraindicated in patients with a history of mental illness. Claimant additionally alleges that notwithstanding that Elavil should be titrated, defendant abruptly discontinued it on April 11, 2015. However, she does not indicate whether this discontinuance caused any injury.
The Court notes that the proposed claim attached to claimant's motion papers supplied to the Court lacks page 2 which appears to contain paragraphs 6 - 17. However, defendant's opposition papers contain a complete copy of the proposed claim as part of Exhibit C, and the Court will refer to this document as the proposed claim. The Court also notes that the proposed claim appears to be an identical copy of Claim No. 131768, particularly given that it is also dated July 25, 2017.
Later in her claim, claimant states that defendant negligently failed to take a proper TB immunization history from Decedent, implying that Decedent may have received a TB vaccination as a child, rather than having suffered from the illness.
There is a subtle distinction between medical negligence and medical malpractice. The Court of Appeals has recognized that although a medical provider "in a general sense is always furnishing medical care to patients . . . not every act of negligence toward a patient would be medical malpractice" (Bleiler v Bodnar, 65 NY2d 65, 73 [1985]. When the allegedly wrongful conduct "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician," the cause of action is for medical malpractice rather than negligence (id. at 72; see Scott v Uljanov, 74 NY2d 673 [1989]). "By contrast, when 'the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [provider's] failure in fulfilling a different duty,' the claim sounds in negligence" (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] quoting Bleiler, 65 NY2d at 73). However, "[u]nder either theory, '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is . . . required' to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to claimant's injuries " (Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see also Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005]).
In this case, whether Decedent should have been prescribed INH, and if so whether the dosage was proper, constitutes the rendition of medical treatment. Accordingly, the cause of action is one for medical malpractice and requires submission of expert testimony to establish the standard of care. Further, whether administration of the INH caused or increased Decedent's suicidal tendencies such that defendant should have monitored him must also be supported by expert testimony. Claimant has provided neither Decedent's medical records nor an expert affidavit in support of her application. The Court finds that claimant has failed to establish even the initial appearance of merit with respect to the medical malpractice cause of action. Thus, the all-important factor of merit weighs against claimant.
Although four of the six statutory factors weigh in favor of claimant, the crucial issue of merit weighs against her. "[W]here 'the excuse offered for the delay is inadequate and the proposed claim is of questionable merit' " (Matter of Robinson v State of New York, 35 AD3d 948, 949-950 [3d Dept 2006], quoting Matter of Perez, 293 AD2d at 919), denial of a late claim application is appropriate (see Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). Accordingly, claimant's motion for late claim relief is denied with respect to a cause of action for medical malpractice, without prejudice.
With respect to claimant's cause of action alleging negligence, it is well-settled that the State must provide its inmates with reasonable protection against foreseeable risks of injury regardless of the source (see Killeen v State of New York, 66 NY2d 850 [1985]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). Despite this obligation, however, the State is not the insurer of the safety of inmates, and the fact that an injury occurs does not give rise to the inference of negligence (see Killeen, 66 NY2d at 851; Sanchez v State of New York, 99 NY2d 247, 253 [2002]; Condon, 193 AD2d at 874). In order to establish that the State is liable for the death of Decedent, claimant must allege and prove that the State knew or should have known that there was a risk of harm to Decedent which was reasonably foreseeable and inadequately addressed (see e.g. Sanchez, 99 NY2d at 255).
In the proposed claim, claimant asserts that Decedent advised defendant that he suffered from a mental illness. Claimant alleges that Decedent had also stated that he wished he had died from a previous GSW (presumably gunshot wound). Claimant notes that notwithstanding this knowledge, defendant failed to properly screen Decedent pursuant to its own safety rules and monitoring practice to determine whether he was or would become suicidal. Claimant indicates that Decedent thereafter used bed sheets provided to him to in his cell to create a noose and hang himself. Claimant also asserts that although Decedent was discovered hanging in his cell at approximately 6:40 a.m., he was not administered any electric shock to resuscitate him and was pronounced dead at the hospital at 7:46 a.m.
Claimant's statements that defendant breached its safety rule and was negligent in failing to properly screen Decedent are conclusory in nature. Although Decedent was not administered any electric shocks in an attempt to restart his heart, there is no evidence that such shocks were advised or warranted. Moreover, the mere fact that Decedent killed himself is insufficient to infer negligence (see Melendez v State of New York, 283 AD2d 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]; see also Killeen, 66 NY2d at 850; Condon, 193 AD2d at 874). Keeping in mind that claimant has a heavier burden to set forth a meritorious cause of action on this motion for late claim relief, the Court finds that she has not set forth sufficient allegations to establish that defendant's conduct was negligent under the circumstances. Accordingly, claimant has failed to establish even the initial appearance of merit with respect to any negligence cause of action, and this factor weighs against her.
Although four of the six statutory factors weigh in favor of claimant, the crucial issue of merit weighs against her, and denial of the late claim application is appropriate under these circumstances. Accordingly, claimant's motion for late claim relief is denied with respect to any negligence cause of action, without prejudice.
In conclusion, the causes of action for negligence and medical malpractice contained in Claim No. 131768 are dismissed as untimely. The cause of action for wrongful death remains as the only viable cause of action. Claimant's Motion No. M-92646 for permission to file and serve a late claim is denied in its entirety, without prejudice to making another motion for such relief upon proper papers.
Claimant alternately requested that the timely filed claim be deemed "a Notice of Intention to Make [a] Claim" (Affirmation of Gary N. Rawlins, Esq., dated July 26, 2018, in Support of Motion, ¶ 5). While Court of Claims Act § 10 (8) sets forth the procedure whereby a claimant may request permission from the Court to treat a timely served notice of intention as a claim, there is no such equivalent provision whereby a claimant might seek permission to treat a claim as a notice of intention. In any event, as set forth previously herein, the notice of intention was timely only with respect to a cause of action for wrongful death which has already been asserted in Claim No. 131768. To the extent that claimant may be seeking to deem the notice of intention as a claim, because Claim No. 131768 containing that cause of action has been timely filed and served, deeming the notice of intention as a claim is denied as moot. --------
November 7, 2018
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on claimant's motion: 1) Notice of Motion filed July 27, 2018; Affirmation of Gary N. Rawlins, Esq., dated July 26, 2018, and attached exhibits. 2) Affirmation in Opposition of Douglas H. Squire, AAG, dated September 5, 2018, and attached exhibits. Filed Papers: Claim filed July 26, 2018; Verified Answer filed September 4, 2018.