Opinion
# 2015-049-011 Claim No. 123490 Motion No. M-85156 Motion No. M-85607
02-04-2015
DENISE JACKSON as Administratrix of the Estate of JEANETTE JACKSON, deceased v. SUNY DOWNSTATE MEDICAL CENTER, UNIVERSITY HOSPITAL OF BROOKLYN AT LONG ISLAND COLLEGE HOSPITAL AND LONG ISLAND COLLEGE HOSPITAL
Law Office of Brian Byfield, P.C. By: Brian Byfield, Esq. Eric T. Schneiderman, New York State Attorney General By: Joseph Tipaldo, Assistant Attorney General
Synopsis
On the Court's own motion, claim dismissed for failure to serve defendant. The Court granted claimant's application for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).
Case information
| UID: | 2015-049-011 |
| Claimant(s): | DENISE JACKSON as Administratrix of the Estate of JEANETTE JACKSON, deceased |
| Claimant short name: | JACKSON |
| Footnote (claimant name) : | |
| Defendant(s): | SUNY DOWNSTATE MEDICAL CENTER, UNIVERSITY HOSPITAL OF BROOKLYN AT LONG ISLAND COLLEGE HOSPITAL AND LONG ISLAND COLLEGE HOSPITAL |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123490 |
| Motion number(s): | M-85156, M-85607 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Law Office of Brian Byfield, P.C. By: Brian Byfield, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Joseph Tipaldo, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 4, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In a claim for wrongful death and pain and suffering filed November 13, 2013, claimant Denise Jackson as administrator of the estate of decedent Jeannette Jackson alleges that the decedent received inadequate medical care while she was a patient at SUNY Downstate Medical Center ("Downstate"). A review of the Court's file indicated that there was no evidence showing that the claim had been properly served on the Office of the Attorney General ("OAG"). Defendant State of New York has not filed an answer.
By Order to Show Cause ("OTSC") (M-85156) dated May 27, 2014, the Court directed claimant to show cause why this claim should not be dismissed for failure to comply with the service requirements of Court of Claims Act § 11(a), and stated that the Attorney General may make any submission it deemed appropriate regarding the Court's jurisdiction over this matter.
By way of response to the OTSC, claimant submitted an Affirmation in Opposition that requested that the Court permit claimant to serve and file a late claim. By letter dated September 4, 2014, the Clerk's Office informed claimant that her Affirmation in Opposition was deemed a motion for permission to serve and file a late claim (M-85607), and was made returnable on October 1, 2014. On October 27, 2014, defendant filed its opposition to the late claim motion. Apparently, defendant requested a one month adjournment of the motion in a letter to the [Acting] Presiding Judge. According to claimant, however, she was never copied on this request. Subsequently, the claimant also requested an adjournment so that she could submit a reply, which the Court granted.
For reasons set forth below, I find that the original claim must be dismissed as not properly served, but the late claim motion should be granted. In light of this outcome, I need not address the parties' arguments regarding the timeliness of the State's reply.
Order to Show Cause: Claim no. 123490
With respect to the Court's OTSC, Court of Claims Act § 11(a)(i) provides in pertinent part that:
"[A] copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court."
Compliance with these service requirements is a jurisdictional prerequisite for bringing suit in this Court (see Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 [2003]). The burden of proving proper service is on the claimant by a preponderance of the evidence (see Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept 1989]; Woods v State of New York, UID No. 2011-013-001 [Ct Cl, Patti, J., Jan. 6, 2011]).
Though claimant's submission asserts that the "action should not be dismissed for lack of jurisdiction by reason of noncompliance with Court of Claims Act § 11(a)" (Cl. Aff. in Op. ¶ 36), claimant does not contend much less prove that the claim had, in fact, been served on defendant. Rather, claimant seems to concede the point, and instead seeks permission to file a late claim pursuant to Court of Claims Act § 10(6). Accordingly, claimant has failed to meet her burden of establishing proper service, and claim no. 123490 must be dismissed.
Late Claim Relief
The "proposed late claim" alleges that as a result of defendant negligently administering the drug propofol, Jeannette Jackson suffered pain and anguish and died on November 15, 2012. In addition, the claim alleges a cause of action for lack of informed consent.
The motion is supported by the affirmation of counsel, the affirmation of Dr. Osafradu Opam, a physician (Cl. Aff. Ex. C), an unverified proposed claim, the Certificate of Death of Jeannette Jackson (id. Ex. A), and the Report of Autopsy along with various other records prepared by the Office by the Chief Medical Examiner (the "Autopsy Report") (id. Ex. B).
The late claim application was filed within the relevant statute of limitations, and the Court therefore has jurisdiction to grant relief under section 10(6). In determining whether such relief is appropriate, the Court must consider the factors listed in the statute (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). Those factors are whether: the delay in filing the claim was excusable; defendant had notice of the essential facts constituting the claim; defendant had an opportunity to investigate; defendant was substantially prejudiced; the claim appears to be meritorious; and the claimant has any other available remedy. These factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling (id.).
By affirmation of Assistant Attorney General Joseph Tipaldo, the State opposes the application on all of the statutory factors.
As a threshold matter, defendant posits that Denise Jackson does not have standing to bring a late claim motion or file a claim as there is no proof that letters of administration where issued to her. Claimant's reply provides a copy of the Decree Appointing Administrator, dated August 15, 2013 by which Denise Jackson was issued letters of administration for the estate of Jeanette Jackson. It is plain, therefore, that Denise Jackson has standing.
With respect to the existence of a valid excuse for the failure to timely serve and file a claim, claimant states that such was the result of confusion over the transfer of ownership of Downstate and Long Island College Hospital. Specifically, a notice of claim was filed at a point where "transfer of ownership of SUNY Downstate and Long Island University College Hospital ["LICH"] was being determined by the Kings County Supreme Court" (Aff. in Supp. ¶ 20). Petitioner does not specify the source of the confusion, or why it impacted the identity of the defendant to be named. This argument, then, amounts to ignorance of the law, which is not a valid excuse for purposes of section 10(6) (see e.g. Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]). Therefore, this factor weighs against granting claimant's application.
While there were extensive legal proceedings regarding whether SUNY would retain an ownership of LICH, that dispute appears to have concerned events that post-date the operation at issue (see New York State Nurses Assn. v State Univ. of N.Y., 39 Misc 3d 588 [Sup Ct, Kings Cty 2013]).
Whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this application are interrelated and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Defendant asserts, correctly, that the mere existence of medical records does not put the State on notice of a legal claim that may be derived from those records (see Lerner v State of New York, 72 AD3d 406, 407 [1st Dept 2010]; Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]). Rather, the State must have knowledge of facts suggesting an event attributable to malpractice (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]; Cartagena v New York City Health & Hosps. Corp., 93 AD3d 187, 190-191 [1st Dept 2012]).
Williams and Cartagena construed the late claim provisions of General Municipal Law § 50-e. As I have discussed previously, the same rationale underlying the use of this standard in the section 50-e context is applicable to a motion under section 10(6) (see Parks v State of New York, UID No. 2012-049-023 [Ct Cl, Weinstein, J., May 11, 2012], at n 6).
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Here, the evidence supporting the motion is not limited to medical records. In addition, claimant has provided a copy of the Autopsy Report, which determined the cause of death as "[c]ardiopulmonary arrest following the administration of propofol for planned colonoscopy for the evaluation of rectal bleed" (Aff. in Opp. Ex. B). Such findings, in an official report, were adequate to notify defendant of a potential malpractice claim. Thus, this factor weighs in claimant's favor.
As to prejudice, defense counsel makes only the general assertion that the delay in filing the initial claim has "inarguably deprived the State of an opportunity to investigate the circumstances underlying the claim" (Def. Aff. in Opp. ¶ 25). Defendant has not submitted an affidavit from a person with knowledge of the relevant facts and circumstances that could attest that there was an inability to investigate, relying instead solely on the affirmation of an assistant attorney general without personal knowledge of the events. Such evidence alone is insufficient to demonstrate prejudice (see e.g Seales v State of New York, UID No. 2011-030-600 [Ct Cl, Scuccimarra, J., Oct. 6, 2011] ["[o]ther than counsel's own declaration that the delay has precluded an ability to investigate - without any indication that any investigation has been attempted and failed - there is no reason why the State could not ascertain its potential for liability and formulate a theory of defense"]; Murti v State of New York, UID No. 2010-040-016 [Ct Cl, McCarthy, J., Mar. 23, 2010] [rejecting claim of prejudice where "counsel has submitted only his own conclusory affirmation in this regard [and t]here is no statement from a potential witness stating that the witness does not remember the event or that the State attempted an investigation and was unable to do so"]). Therefore, these factors weigh in favor of granting claimant's application.
As to the availability of an alternate remedy, an action presumably lies against the individuals involved in the incident in State Supreme Court. Thus, this factor weighs against granting the application.
Finally, the appearance of merit is generally considered the "most important" criteria in assessing a section 10(6) application (see Matter of Professional Charter Servs. v State of New York, 166 Misc 2d 306, 308 [Ct Cl 1995]). This factor is analyzed under the twofold test set forth in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1 [Ct Cl 1977]). To meet this test: (1) the proposed claim "must not be patently groundless, frivolous, or legally defective," and (2) the record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable cause to believe that a valid cause of action exists" (id. at 11). It is claimant's burden to establish the appearance of merit (Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]), and mere conclusory allegations of wrongdoing do not suffice (see Witko v State of New York, 212 AD2d 889 [3d Dept 1995]).
As a general rule, claimant must support a late claim application alleging medical malpractice with medical records or expert medical proof (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]). Here, claimant has submitted such evidence through the Affirmation of Osafradu Opam, M.D., and the Autopsy Report, which includes a histology report, toxicology report, forensic toxicology laboratory report, and neuropathology report.
Dr. Opam based his opinion on his review of the Autopsy Report. He opined within a reasonable degree of medical certainty that defendant's departures from accepted medical standards and practice in the community were a substantial factor in: 1) causing the substantial and dramatic decrease in decedent's chance of survival; 2) depriving decedent of the opportunity for a meaningful medical intervention and avoiding death; 3) causing substantial pain and suffering up to her death; and 4) causing Jeannette Jackson's death. He noted that the Autopsy Report states that decedent sustained a cardiopulmonary arrest following the administration of propofol for a planned colonoscopy, and that she had a history of other ailments. Opam stated that given decedent's medical history and condition that included heart disease, kidney disease, and high blood pressure, the use of the sedative propofol could cause a cardiopulmonary arrest, and in this case it caused her death. Opam opined that defendant could have administered Versed and Fentanyl, which are reversible in the event of a cardiopulmonary arrest. The doctor also expressed the view that had a thorough medical evaluation been performed on decedent the risk for complications such as cardiopulmonary arrest could have been prevented.
For its part, defendant asserts that Opam is a neurologist, and is therefore unqualified to testify to the causes of claimant's cardiopulmonary arrest, as this is outside his expertise. A physician, however, "need not be a specialist in a particular field in order to qualify as a medical expert," and the specific degree of his experience and knowledge goes to weight, not admissibility (see Bodensiek v Schwartz, 292 AD2d 411, 411 [2d Dept 2002]; see also Walsh v Brown, 72 AD3d 806, 807 [2d Dept 2010] [rejecting argument that ob/gyn not qualified to opine on oncology]). Moreover, claimant has also submitted the Autopsy Report in support of the claim, and defendant has made no submission of its own to address the merits of the proposed claim. Under these circumstances, and at this stage of the proceeding - where claimant need only show "reasonable cause" to believe that she has a meritorious claim - I find that the claimant has met this standard. This factor therefore weighs in claimant's favor.
Accordingly, having reviewed the submissions and having considered all of the factors enumerated in the Court of Claims Act § 10(6), it is
ORDERED that motion no. M-85607 be granted, and that within thirty (30) days of the filing of this Decision and Order, claimant shall serve and file a properly verified claim in the form of the proposed claim annexed to her moving papers as exhibit D, entitling it Claim, and naming the State of New York as the only defendant. In serving and filing the claim, claimant shall comply with all of the requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims, including the payment of a filing fee in accordance with Court of Claims Act § 11-a; and it is further
ORDERED that motion no. M-85156 be granted and claim no. 123490 be dismissed.
February 4, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. The Court's Order to Show Cause dated May, 27, 2014.
2. Claimant's Affirmation in Opposition, Motion to File a Late Claim and annexed exhibits.
3. Defendant's Affirmation in Opposition to claimant's Motion to File a Late Claim.
4. Claimant's Affirmation in Reply to defendant's Opposition and annexed exhibits.