Opinion
# 2016-045-014 Claim No. None Motion No. M-87960
09-08-2016
KENNETH LORELLO as Administrator of the Estate of ALEXIS LORELLO, Deceased, and KENNETH LORELLO, Individually v. THE STATE OF NEW YORK
Queller, Fisher, Washor, Fuchs & Kool, LLP By: Barry A. Washor, Esq. Hon. Eric T. Schneiderman, Attorney General By: Ross N. Herman, Assistant Attorney General
Synopsis
Late claim motion medical malpractice claim.
Case information
| UID: | 2016-045-014 |
| Claimant(s): | KENNETH LORELLO as Administrator of the Estate of ALEXIS LORELLO, Deceased, and KENNETH LORELLO, Individually |
| Claimant short name: | LORELLO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-87960 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Queller, Fisher, Washor, Fuchs & Kool, LLP By: Barry A. Washor, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Ross N. Herman, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 8, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Claimants' Notice of Motion, Claimants' Affidavit with annexed Exhibits A-C, Defendant's Affirmation in Opposition and Claimants' Reply Affirmation with annexed Exhibit A.
Claimants, Kenneth Lorello, as administrator of the estate of Alexis Lorello, deceased, and Kenneth Lorello, individually, have brought this motion pursuant to Court of Claims Act (CCA) § 10 (6) seeking an order granting permission to file a late claim. Defendant, the State of New York, opposes this motion.
The underlying claim in this matter arises out of an admission to Stony Brook University Hospital (Stony Brook) on August 21, 2014. During that admission Alexis Lorello underwent a procedure for the placement of a catheter for purposes of providing Continuous Veno-Venous Hemodialysis (CVVHD) which required the insertion of a catheter into her left femoral vein under ultrasound guidance. Claimants allege that during this procedure, the needle used to gain access to the femoral vein negligently traversed through the femoral artery. Consequently, complications arose resulting in the loss of Alexis Lorello's left leg below the knee.
It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10 (6) (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious; and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.
Claimants do not offer any legally acceptable excuse for the delay in filing the claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.
The next three factors, notice, an opportunity to investigate and prejudice, are interrelated and as such will be considered together. While it is true that defendant was not put on notice by the mere possession of the hospital records (Bucknor v New York City Health & Hosps. Corp. [Queens Hosp. Ctr.], 44 AD3d 811 [2d Dept 2007]), defendant is not offering any specifics as to how it is or has been substantially prejudiced by the delay in filing of this claim (Barnes v New York City Hous. Auth., 262 AD2d 46 [1st Dept 1999]; Butler v Town of Smithtown, 293 AD2d 696 [2d Dept 2002]). Additionally, in the ordinary and regular course of hospital treatment and record keeping, any pertinent medical records must be preserved for a much longer period of time than the delay here (see 10 NYCRR §§ 405.10 [a] [4] and 405.10 [b] [2] [iv]; Madkins v State of New York, 82 AD3d 1174 [2d Dept 2011]). Thus the Court finds that, given the entirety of the circumstances involved in the present action, these factors are found to be in claimants' favor.
The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
"In order for a claim to 'appear to be meritorious': (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists . . . . [T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file" (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]).
In order to establish the appearance of merit in a medical malpractice claim, claimants must set forth that defendant departed from the accepted standard of medical care, and that such a 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 that are unsupported by competent evidence establishing the essential elements are insufficient (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]). "[E]xpert medical evidence clearly is required to demonstrate that the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standards" (Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]).
Claimants have set forth through the affidavit of Norman Chideckel, M.D. that defendant departed from the accepted standard of medical care, and that such departure was a proximate cause of claimants' injuries. Accordingly, the Court finds that claimants have established, for the purposes of this motion, that the claim is meritorious.
Finally, claimants may have a viable action against individual physicians in New York State Supreme Court.
Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), the Court finds that the factors favor claimants' application. Thus, the Court hereby grants claimants' motion to file a late claim.
Accordingly, within sixty (60) days of the date this decision and order is filed, claimants shall file and serve the proposed claim, together with a payment of the appropriate filing fee, pursuant to Court of Claims Act §§ 11 and 11-a.
September 8, 2016
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims