Opinion
# 2013-028-531 Motion No. M-83261
10-29-2013
SUZANNE BRAUN v. THE STATE OF NEW YORK
Claimant's attorney: DUFFY & DUFFY BY: Mary-Rita Wallace, Esq. Defendant's attorney: HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph Tipaldo, Esq. Assistant Attorney General
Synopsis
Motion for permission to late file is granted where Movant was unaware for more than a year that the medical treatment she received at Defendant's hospital may have been negligent. Delay caused by such lack of knowledge does not serve to toll the statute of limitations but it can, in certain circumstances, provide a reasonable excuse for delay in commencing a lawsuit.
Case information
UID: 2013-028-531 Claimant(s): SUZANNE BRAUN Claimant short name: BRAUN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-83261 Cross-motion number(s): Judge: RICHARD E. SISE DUFFY & DUFFY Claimant's attorney: BY: Mary-Rita Wallace, Esq. HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: BY: Joseph Tipaldo, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: October 29, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read on Movant's motion for permission to late file an untimely claim pursuant to Court of Claims Act § 10 (6):
1. Notice of Motion and Supporting Affirmation of Mary-Rita Wallace, Esq., with annexed Exhibits;
2. Affirmation in Opposition of Joseph Tipaldo, AAG; and
3. Reply Affirmation of Mary-Rita Wallace, Esq., with annexed Exhibit.
Filed papers: None
Movant's proposed claim (Wallace affirmation, Exhibit 1) alleges that Movant suffered severe personal injuries caused by the medical malpractice of Defendant's agents during the period of time from October 14, 2009 to October 15, 2010. The global allegations of negligence include failure to properly diagnose breast cancer, failure to conduct the appropriate diagnostic tests; failure to timely and properly treat the cancer; failure to refer Movant for specialized care; failure to consult with appropriate medical experts; as well as many other alleged failures and departures from acceptable medical practice. More specific facts about the transactions and occurrences giving rise to the proposed claim can be gleaned from the affirmation submitted by Movant's counsel and the affidavit of Movant herself (Wallace affirmation, Exhibit 2). These accounts indicate that on October 14, 2009, Movant began treatment at the Carol Baldwin Breast Care Center for an abnormality in her right breast. This treatment continued through to October 15, 2010, at which time it was concluded that there was no evidence of malignancy. Approximately one year later, in October 2011, she was examined at another facility and informed that her right breast was abnormal and, following a biopsy, that she had a stage 4 carcinoma in that breast which had metastsized into her bones. Immediately after receiving this diagnosis, Movant began receiving extensive treatment: chemotherapy, bilateral mastectomies, radiation, and bilateral oophorectomies.
Late claim relief is available only if the motion is brought within the applicable CPLR article 2 statute of limitations. Causes of action based on medical malpractice must be commenced within two and one-half years of the date of accrual which, in this case, was October 15, 2010, the date of her last treatment and diagnosis at Defendant's hospital. This late claim motion was initially commenced on April 10, 2013, just a few days before the two and one-half year deadline.
Because the alleged malpractice occurred at the end of her treatment, it is not necessary for Movant to rely on the continuous treatment doctrine made available in CPLR 214-a. In addition, the argument that November 2011, when Movant learned that she had cancer and therefore that Defendant may have had misdiagnosed her condition, should be the date on which the cause of action arose may have a certain logic behind it but not the law. "[U]nder New York law, the accrual of a cause of action for medical malpractice [that is] not based upon the discovery of a foreign object in the body of the patient is measured from the date of the occurrence of the act, omission or failure complained of as opposed to the date of the discovery of the injury" (Candelaria v Erickson, 2005 WL 1529566 [SD NY 2005]; see also Helgans v Plurad, 255 AD2d 554 [2d Dept 1998, appeal dismissed in part 93 NY2d 882 [1999], lv dismissed in part, lv denied in part 93 NY2d 994 [1999], citing CPLR 214-a; 76 NY Jur 2d Malpractice § 238).
In order to determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act § 10 (6), as well as any other relevant factors. The existence or absence of any one of these factors is not determinative, and the list of factors is not exhaustive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). The six statutory factors are as follows:
(1) whether the delay in filing the claim was excusable;
(2) whether the State had notice of the essential facts constituting the claim;
(3) whether the State had an opportunity to investigate the circumstances underlying the claim;
(4) whether the claim appears to be meritorious;
(5) whether the failure to serve upon the attorney general a timely claim or to serve a notice of intention resulted in substantial prejudice; and
(6) whether the claimant has any other remedy.
In the instant application, counsel for Movant asserts that the initial delay in this case was excusable because she did not discover that the right breast continued to be abnormal until September 2011, far more than 90 days after the allegedly inaccurate diagnosis. As noted above, once she learned that she had cancer in November 2011, Movant began an intensive round of treatment, including multiple surgeries, causing her to be incapacitated for an extended period of time. It was not until February 2013 that she contacted an attorney (Wallace affirmation, ¶ 14). This motion for permission to late file was instituted shortly thereafter.
The extensive treatment received by Movant, and the several complications that arose from such treatment, is confirmed by documents annexed to the moving papers. Counsel for Defendant argues that these records cannot establish an acceptable excuse for inaction during the year or more immediately after the claim's accrual because they do not reveal any incapacitating treatment or activity during that time (Tipaldo affirmation, ¶ 5). However, Movant's inaction during that time, both in obtaining treatment for her cancer or in prosecuting this claim, was in effect caused by Defendant's alleged negligence: she was not aware that she had cancer and had no reason to suspect that she had been misdiagnosed by Defendant. This period of delay can hardly be held against Movant, and her ignorance of the fact of her injury constitutes a quite valid reason for such inaction (47-Albany Troy Rd. Corp. v State of New York, 17 AD2d 892 [3d Dept 1962]; Callanan v State of New York, 42 Misc 2d 740 [Ct Cl 1964], affd 23 AD2d 937 [3d Dept 1965]; Matter of Santana v New York Thruway Auth., 92 Misc 2d 1, 6 [Ct Cl 1977]; Davis v State of New York, 84 Misc 2d 597 [Ct Cl 1975, revd on other grounds 54 AD2d 126 [3d Dept 1976]).
There is no dispute that once she learned of the cancer and began obtaining extensive and difficult treatment to combat it, she was indeed incapacitated and unable to pursue litigation (see Wolf v State of New York, 140 AD2d 692 [2d Dept 1988]; Carmen v State of New York, 49 AD2d 965 [3d Dept 1975]; 62A NY Jur 2d Government Tort Liability § 324). The attached records and reports do establish the seriousness of Movant's condition and the legitimacy of her excuse for delay once a diagnosis was made. Despite defense counsel's contention to the contrary, the Court is aware of no requirement that hospital and other records submitted for this purpose, on a very preliminary motion, must be certified and in a form that would make them admissible as evidence. The cases cited by counsel for Defendant (Shafi v Motta, 73 AD3d 729 [2d Dept 2010] and Banfield v New York City Tr. Auth., 36 AD3d 732 [2d Dept 2007]) involve motions for summary judgment, in which supporting documents must be in admissible form (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). There is no such requirement with respect to records and other evidence submitted in support of a motion for permission to late file (Clark v State of New York, UID No. 2013-028-507 [Ct Cl, Sise, P.J., Apr. 19, 2013];Yang v State of New York and New York State Thruway Auth.,UID No. 2013-049-010, n 6 [Ct Cl, Weinstein, J., Feb. 22, 2013]).
As to the availability of alternative remedies, Movant may, depending on the circumstances leading to the alleged misdiagnosis, have the option of pursuing actions in Supreme Court against the individual treating physicians. Such actions would not, however, incorporate any claim of negligence on the part of the hospital staff members, such as nurses or technicians, who may also have participated in her treatment and analysis of test results. There is merit to the argument of Movant's counsel that "[a]t this early state of this medically complicated case," it would be unfair to preclude a claim based on allegations for which the individual treating physicians would not be responsible (Wallace affirmation, ¶ 40). Consequently, as was the case inRosario v State of New York, (8 Misc 3d 1007[A], 2005 NY Slip Op 50981 [U] [Ct Cl 2005]), "although alternative remedies are available for some portions of the Claim, others may not be pursued elsewhere."
The factors of notice, opportunity to investigate and potential prejudice to the Defendant are interrelated. While there is no dispute that Defendant had possession of or access to all of the records outlining its treatment of Movant, her counsel acknowledges that possession of such records "is not per se notice of this claim" (Wallace affirmation, ¶ 35). The statute expressly refers to notice of "the facts constituting the claim," but it has been uniformly held that the true issue is whether State was aware of the facts underlying the claim and that there would be -- or was likely to be -- litigation in the future, since the purpose of the notice is to "trigger an investigation of the claim and avoid substantial prejudice to respondents" (Block v New York State Thruway Auth., 69 AD2d 930 [3d Dept 1979]). Some events, by their very nature, will have triggered an investigation and in those instances the State's notice and opportunity to investigate will suffice to meet the statutory requirement (Espinal v State of New York, 159 Misc 2d 1051, 1057 [Ct Cl 1993] [prison assault resulting in serious injuries]). In the instant case, however, as far as Defendant's hospital was aware, Movant was healthy when she was released in October 2011. The date on which the hospital learned otherwise is unknown, but if, as is likely, it was not until the instant motion was filed, then it did not receive prompt notice. On the other hand, given the nature of this action, the relevant evidence is going to be documentary in nature, and the passage of time will have interfered only minimally with Defendant's ability to investigate the facts underlying its allegedly negligent decisions. Consequently, Defendant would not be unduly prejudiced if the requested relief is granted.
Movant's counsel relies on Williams v Nassau County Med. Ctr., (6 NY3d 531 [2006]), but that decision and others referenced by counsel involved the notice requirement of section 50-e of the General Municipal Law, not section 10 (6) of the Court of Claims Act. Although the two statues are similar in many ways they are not to be construed together or considered in pari materia (Groell v City of New York, 135 Misc 2d 823, 826 [Sup Ct 1987]). In some respect the two notice provisions are quite dissimilar (Erickson v State of New York, 131 Misc 2d 607, 608
[Ct Cl 1986] [50-e notice of claim does not commence an action])
Of the six enumerated factors set forth in section 10 (6), it is the appearance of merit which weighs most heavily, because it would be pointless to permit the filing of a claim that did not appear to be meritorious (see e.g. Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]). In this instance, there is no dispute that if the facts as alleged are proven, Movant would have a viable cause of action against Defendant (see Wallace affirmation, Exhibit 5 [physician's affidavit]).
Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting the requested relief. Movant therefore is directed to file and serve a claim identical to the proposed claim, annexed as Exhibit 1 to the Wallace affirmation, and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within 30 days of the date this Decision and Order is filed.
As noted above, the allegations contained in the proposed claim do not provide sufficient information about the "transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense" (CPLR 3013). That information has been provided, in detail, in connection with the instant motion, however, and therefore the Court perceives no need to require Movant to redraft the claim before approving the request to late file. To do so would only cause further delay for no purpose. If Defendant seeks more specific information about the allegations Movant intends to prove, they can as easily be provided in a verified bill of particulars.
Movant's motion is granted.
October 29, 2013
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims