Opinion
# 2016-050-020 Claim No. None Motion No. M-87937
03-30-2016
JOHN HARNEY AND LORIE HARNEY v. THE STATE OF NEW YORK
Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C. By: Christina Ctorides, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Felicia Notaro, Assistant Attorney General
Synopsis
Claimant's move to file a late claim for medical malpractice and the defendant opposes the motion. The proposed claim essentially rests on the asserted incorrect reading by the emergency room radiologist and the misdiagnosis of the stroke which was identified upon his second emergency room visit. A balancing of the statutory factors of CCA section 10 (6) weighs in favor of granting this application. Therefore, the motion is granted.
Case information
| UID: | 2016-050-020 |
| Claimant(s): | JOHN HARNEY AND LORIE HARNEY |
| Claimant short name: | HARNEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only proper defendant, the State of New York. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-87937 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C. By: Christina Ctorides, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Felicia Notaro, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 30, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The proposed claimants move for late claim relief pursuant to Court of Claims Act (CCA) § 10 (6). The motion was served January 12, 2016 and it is opposed by the defendant.
The proposed claim is based upon medical malpractice alleged to have occurred on April 8, 2015 when the proposed claimant John Harney was seen at the emergency room of Stony Brook University Medical Center (SBU). At that time he claimed to have experienced symptoms potentially related to stroke and a radiological test (a CT scan) was performed. The radiologist's report was negative, citing as the "impression" in a report made April 8, 2015 "[n]o CT evidence of acute intracranial pathology." John Harney was discharged on April 8, 2015. He returned to the emergency room with his wife on April 10, 2015 after he allegedly experienced further symptoms. On April 10, 2015, an MRI was performed which reflected the presence of a stroke. The proposed claim essentially rests on the asserted incorrect reading by the emergency room radiologist on April 8, 2015 of John Harney's CT scan and the misdiagnosis of the stroke which was identified upon his second emergency room visit on April 10, 2015.
Here, through the affidavits of proposed claimants and their medical expert, Dr. Oluwatoyin R. Idowu, the critical factor of the appearance of merit of the proposed claim(see Sevilla v State of New York, 145 AD2d 865 [3d Dept 1988]; Fowx v State of New York, 12 Misc3d 1184 [A] 824 NYS2d 762 [Ct Cl 2006]) has been demonstrated; petitioners' claims are not patently groundless, frivolous or legally defective (see Fowx v State of New York, 12 Misc3d 1184 [A] 824 NYS2d 762 [Ct Cl 2006]; Sands v State of New York, 49 AD3d 444 [1st Dept 2008]). Dr. Idowu, whose affirmation dated January 7, 2016 is submitted on proposed claimants' behalf, clearly identifies the claimed departure in the radiologist's reading of the CT scan in the emergency room. In this particular case, where the proposed claimant John Harney was seen two days following his first visit to the emergency room - in the same emergency room - and was then and there found to have suffered from a stoke, the assertion by defendant of lack of notice of the essential facts constituting the claim (one of the factors to be considered under § 10 [6]) as well as lack of an opportunity to investigate are palpably untenable. The Court finds that in such circumstance defendant had notice and an opportunity to investigate and was not prejudiced by the lack of a timely notice of intention to file a claim or claim in this case (see Lisandro v New York City Health and Hospitals Corp., 50 AD3d 304 [1st Dept 2008]). The excuse proffered by proposed claimants for their failure to meet the 90-day requirement set forth in CCA § 10 - lack of awareness of the time governing requirements until they saw an attorney in the "fall of 2015" (see affidavit of proposed claimants sworn to December 31, 2015, at paragraph 21) - has been rejected as a sufficient excuse in certain cases (see Sessa v State of New York, 47 NY2d 976 [1979]; La Bar Truck Rental Inc., 52 AD2d 1007 [3d Dept 1976]; Matter of E.K. v State of New York, 235 AD2d 540 [2d Dept 1996]). Nonetheless, while insufficient as an excuse herein, the absence of this fact (the lack of adequate excuse) is not alone determinative (see Qing Liu v City Univ. of New York, 262 AD2d 473 [2d Dept 1999]). The proposed claimants also have shown that they have no alternative remedy (see De Paolo v State of New York, 99 AD2d 762 [2d Dept 1984]).
A balancing of the statutory factors (see CCA § 10 [6]) weighs in favor of granting this application. Therefore, the motion is granted conditioned upon the proposed claimants filing and serving the proposed claim - in the form as annexed to the affidavit of proposed claimants' attorney as exhibit "I" - in accordance with requirements of the CCA within 45 days of the date of filing of this decision and order in the Office of the Clerk of this Court.
March 30, 2016
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on the claimant's motion for late claim relief: 1. Notice of Motion, Verified Petition with Exhibits A through M. 2. Affirmation in Opposition. 3. Reply Affirmation.