Opinion
# 2019-045-022 Claim No. 132386 Motion No. M-93414 Cross-Motion No. CM-93626
07-19-2019
CHRISTINE COOLIDGE v. THE STATE OF NEW YORK
Pontisakos & Brandman, PC By: Brian S. Brandman, Esq. Hon. Letitia James, Attorney General By: Ross N. Herman, Assistant Attorney General
Synopsis
Defendant's motion to dismiss medical malpractice claim as untimely per CCA § 10 (3) and fails to comply with CCA § 11 (b). Claimant argues continuous treatment doctrine should apply.
Case information
| UID: | 2019-045-022 |
| Claimant(s): | CHRISTINE COOLIDGE |
| Claimant short name: | COOLIDGE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132386 |
| Motion number(s): | M-93414 |
| Cross-motion number(s): | CM-93626 |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Pontisakos & Brandman, PC By: Brian S. Brandman, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Ross N. Herman, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 19, 2019 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on these motions: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibits A-C; Claimant's Notice of Cross-Motion; Claimant's Affirmation in Opposition and in Support of Cross-Motion with annexed Exhibits A-B; and Defendant's Reply Affirmation with annexed Exhibits 1-5.
Defendant, the State of New York, has brought this motion pursuant to Court of Claims Act §§ 10 (3) and 11 (b) seeking an order dismissing the claim on the grounds that the claim is untimely and the claim does not state the nature of the cause of action with particularity.
Claimant, Christine Coolidge, opposes defendant's motion and has brought a cross-motion pursuant to Court of Claims Act § 10 (8) (a) seeking permission to treat the notice of intention as the claim in this action.
A notice of intention to file a claim was served upon defendant on September 27, 2016 in this matter. Claimant states in the notice of intention that she was treated at Stony Brook University Hospital from June 24, 2016 through July 6, 2016. Claimant alleges in the notice of intention that during that time period she was subjected to substandard medical care which led to her claim for medical malpractice.
Claimant served her claim upon defendant on December 12, 2018 and filed her claim with the Court on December 13, 2018. Claimant asserts in the claim that she was under the medical care of defendant at Stony Brook University Hospital from June 23, 2016 through July 6, 2016. In another paragraph of the claim she lists June 24, 2016 as the beginning of her stay at Stony Brook University Hospital. Claimant alleges that during that time period defendant failed to provide her with proper medical treatment which resulted in her sustaining injuries which will lead to her becoming permanently disabled.
Court of Claims Act § 10 (3) requires that:
"[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim."
Defendant argues that, assuming the notice of intention was timely served, the claim is untimely because it was served outside the time requirements of Court of Claims Act § 10 (3). The claim was not served on the Office of the Attorney General until December 12, 2018, beyond the two-year period set forth in Court of Claims Act § 10 (3).
The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; see also Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989]). Claimant's failure to timely serve the claim deprives this Court of jurisdiction over the claim (Lepkowski v State of New York, 1 NY3d 201 [2003]; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]; Turley v State of New York, 279 AD2d 819 [3d Dept 2001]). Accordingly, the Court must dismiss the claim.
Defendant also moves to have the claim dismissed for failing to state the nature of the cause of action with any particularity, in violation of Court of Claims Act § 11 (b).
Court of Claims Act § 11 (b) requires that:
"[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed....The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated."
The claim alleges in relevant part that:
"12. At all times hereinafter mentioned, defendant, STONY BROOK UNIVERSITY HOSPITAL, by its agents, employees, nurses and physicians deviated and departed from the accepted standards of medical care in its care and treatment of plaintiff [sic], CHRISTINE COOLIDGE.
13. At all times hereinafter mentioned, plaintiff [sic], CHRISTINE COOLIDGE, was caused to sustain serious personal injuries by reason of the negligence, carelessness, malpractice and substandard care of the defendant, STONY BROOK UNIVERSITY HOSPITAL.
14. By reason of the foregoing, plaintiff [sic], CHRISTINE COOLIDGE, has sustained damages in a sum that exceeds the jurisdictional limits of all lower courts save the Supreme Court of the State of New York.
15. That by reason of the foregoing, claimant, CHRISTINE COOLIDGE, sustained injuries to limbs and body, the full extent of which are not yet know [sic], including injuries to the claimant's head, shoulders, upper extremities, neck back, ribs, and lower extremities, and has been confined to hospital, bed and home by reason thereof; claimant has suffered, and continues to suffer server [sic] physical pain and mental anguish; that claimant has been disabled from usual and daily activities by reason thereof and, upon information and belief, will be permanently totally disabled; upon information and beleif [sic], all injuries will be permanent.
16. That the aforesaid occurrence and injuries sustained were occasioned solely by reason of the negligence and carelessness of the defendant(s) which consisted of the following amount [sic] other things: by failing to provided [sic] proper medical treatment to claimant, by departing from good and accepted medical practice, by failing to timely diagnose and treat claimant's condition, failing to provide proper and timely treatment, and medications."
The claim lists the date of the subject incident as occurring between June 24, 2016 and July 6, 2016 although in another paragraph of the claim it states that claimant was under the care of defendant from June 23, 2016 through July 6, 2016. The claim does not describe what actually occurred during that time period to cause claimant's injuries. The claim fails to provide the reader with any particular information as to what actions defendant took or failed to take over the course of a thirteen day hospitalization which caused claimant's injuries. As a result, the Court finds that the claim fails to satisfy the requirements set forth in Court of Claims Act § 11 (b). Thus, the claim is jurisdictionally defective under this section of the Act and must also be dismissed on this ground (DeMairo v State of New York, 172 AD3d 856 [2d Dept 2019]; Fairchild Corp. v State of New York, 117 AD3d 780 [2d Dept 2014]; Hunter v State of New York, 72 AD3d 1030 [2d Dept 2010]).
Having failed to timely file and serve a claim in the Court of Claims, claimant now seeks an order converting the notice of intention into a claim pursuant to Court of Claims Act § 10 (8) (a).
Court of Claims Act § 10 (8) (a) provides that:
"[a] claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."
Claimant argues that although the cross-motion is presented more than 2 years and 6 months after the last day the alleged acts of malpractice occurred, July 6, 2016, it is timely due to defendant's continuous treatment of claimant. Under the continuous treatment doctrine, the two and a half year statute of limitations period does not begin to run until the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint (Lohnas v Luzi, 30 NY3d 752 [2018]; Cohen v Gold, 165 AD3d 879 [2d Dept 2018]; Yanez v Watkins, 164 AD3d 547 [2d Dept 2018]).
Three conditions must be met in order for the continuous treatment doctrine to apply: (1) the patient continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period; (2) the course of treatment was for the same conditions or complaints underlying claimant's medical malpractice claim; and (3) the treatment is continuous (Mello v Long Is. Vitreo-Retinal Consultant, P.C., 172 AD3d 849 [2d Dept 2019][internal quotations omitted]).
Claimant explains in her cross-motion that she was a 72 year old patient of Dr. Garguillo and received an epidural injection of lidocaine as well as depomedrol for back pain while in Dr. Garguillo's office. Claimant does not allege any relationship between Dr. Garguillo and defendant. Claimant states that after the injection she immediately experienced numbness in her lower back and both legs. An ambulance brought her from the doctor's office to Southampton Hospital which at that time had no affiliation with defendant. Defendant acquired Southampton Hospital on August 1, 2017. Claimant was evaluated and transferred to Stony Brook Hospital by ambulance. Claimant alleges that her condition continued to deteriorate, but no intervention was offered, and after two weeks without treatment she was discharged to the Rusk Rehabilitation Institute at New York University Langone Hospital with paraplegia. Claimant states that she returned to Stony Brook Hospital on three other occasions. Once for left leg pain and bacteremia which required an admittance between September 30 and October 2, 2017. A second time for outpatient studies on May 22, 2018 for a cervical disc herniation and lastly on August 7, 2018 for a pelvis/hip fracture.
In response defendant points out that the three subsequent visits on September 30, 2017, May 22, 2018 and August 7, 2018 took place at Stony Brook Southampton Hospital, not Stony Brook University Hospital. Defendant also argues that the service of the notice of intention on September 27, 2016 ends the availability of the continuous treatment doctrine. Defendant contends that claimant has not pointed to any evidence showing that additional treatment was anticipated by claimant and the Stony Brook University Hospital physicians that treated her. There was also a 14 month gap between claimant's discharge on July 6, 2016 and her treatment at Stony Brook Southampton Hospital beginning on September 29, 2017. Additionally, defendant meticulously compared the Stony Brook University Hospital record with the Stony Brook Southampton Hospital record and found that none of the doctors, nurses, or other staff members who treated claimant at Stony Brook University Hospital between June 24, 2016 and July 6, 2016 also treated claimant at Stony Brook Southampton Hospital in 2017 and 2018.
The September 30, 2017 visit required an admittance to Stony Brook Southampton Hospital through October 2, 2017. --------
Defendant also puts forth the fact that claimant sought treatment at the Rusk Rehabilitation Center at New York University Langone Hospital following her discharge from Stony Brook University Hospital on July 6, 2016. Claimant also received treatment for her condition at Southampton Hospital on September 16, 2016 and January 11, 2017, before the hospital was acquired by defendant on August 1, 2017.
It is the Court's opinion, given the facts and circumstances of this case, that claimant has failed to establish that the continuous treatment doctrine should apply to this action. Claimant has failed to show that she and defendant reasonably intended claimant's uninterrupted reliance upon defendant's observation, directions, concern, and responsibility for overseeing claimant's progress (Lohnas v Luzi, 30 NY3d 752 [2018]). Claimant does not identify any individual physician or group of physicians employed by defendant with whom claimant established a continuous course of treatment. Claimant sought treatment at the Rusk Institute and Southampton Hospital after her treatment at Stony Brook University Hospital. Claimant never returned to Stony Brook University Hospital but continued to treat at Southampton Hospital both before and after its acquisition by defendant. The Stony Brook University Hospital record from clamant's June 24, 2016 admittance does not indicate any future appointments scheduled but rather instructs a follow-up with claimant's primary care physician. Claimant does not identify any physician or group of physicians that treated her at both Stony Brook University Hospital and Stony Brook Southampton Hospital. Thus, the Court finds that the only factor showing a relationship between the physicians seen by claimant at both hospitals is through the hospital's joint ownership by defendant. Accordingly, the Court finds that the continuous treatment doctrine is not applicable to the facts of this case (Allende v New York City Health & Hosps. Corp., 90 NY2d 333 [1997]; Yanez v Watkins, 164 AD3d 547 [2d Dept 2018]).
As a result, the Court finds that claimant's cross motion to convert her notice of intention into a claim pursuant to Court of Claims Act § 10 (8) is untimely and must be denied.
Additionally, a notice of intention must satisfy the requirements of a claim under Court of Claims Act § 11 (b) before it may be converted into a claim (DeMairo v State of New York, 172 AD3d 856, 857 [2d Dept 2019]; Edens v State of New York, 259 AD2d 729 [2d Dept 1999]). "[T]he State is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11" (DeMairo v State of New York, 172 AD3d 856, 857 [2d Dept 2019]; Hargrove v State of New York, 138 AD3d 777, 778 [2d Dept 2016]). "Lack of prejudice to the State is immaterial and a court is without power to dispense with applicable jurisdictional requirements of law based upon its own concepts of justice" (DeMairo v State of New York, 172 AD3d 856, 857 [2d Dept 2019]). Claimant's notice of intention provides less detail than the claim in this matter which the Court has already found does not comply with the requirements of Court of Claims Act § 11 (b). Accordingly, the Court would again be constrained from converting the notice of intention into a claim in this matter.
Therefore, for the foregoing reasons, defendant's motion to dismiss the claim is granted and claimant's cross-motion is denied.
July 19, 2019
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims