Opinion
# 2015-041-078 Claim No. NONE Motion No. M-87570
12-22-2015
JAMES R. MOOREv. THE STATE OF NEW YORK
DAVID P. ELKOVITCH, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General
Synopsis
Application to file late claim alleging medical negligence is granted where proposed claim alleging that defendant caused 81 year old inmate claimant to suffer accidental overdose of unprescribed narcotic drug (morphine) established the appearance of a meritorious claim despite claimant's failure to submit a medical affidavit.
Case information
| UID: | 2015-041-078 |
| Claimant(s): | JAMES R. MOORE |
| Claimant short name: | MOORE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended to properly state the defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-87570 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | DAVID P. ELKOVITCH, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 22, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
James Moore (claimant) moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant opposes the motion.
Claimant, an inmate at Coxsackie Correctional Facility, alleges that on June 28, 2015 he was "an inmate at Franklin Correctional Facility [and] was given the wrong medication [morphine] for which the claimant suffered temporary and permanent injuries." Claimant asserts in his affidavit supporting his late claim application that he "was given morphine by staff members at Franklin Correctional Facility [and] [m]orphine is not a medication I am prescribed, nor do I take it." The record indicates that claimant was 81 years old and confined to a wheelchair at the time of the incident.
Claimant was transported to Alice Hyde Medical Center after the incident and diagnosed with "Acute Respiratory Failure and Metabolic encephalopathy due to Accidental Overdose of Morphine." He was discharged back to Franklin Correctional Facility on July 2, 2015.
Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time 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 claim accrued on or about June 28, 2015 and the late claim application was made on October 28, 2015. Claimant's cause of action sounding in medical negligence is not time-barred by the either the two years and six months limitations period set forth in CPLR 214-a or the three year period described in CPLR 214.
In determining the application, Court of Claims Act §10 (6) provides that:
"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).
A verified claim was required by Court of Claims Act §10 (3) to be filed and served on or before September 26, 2015. The affidavits of claimant and claimant's attorney set forth a reasonable excuse for the modest delay in filing and serving the claim. The record shows that the claim was sent by express mail to claimant by his attorney for verified signature on September 14, 2015 but was not received by claimant at Coxsackie Correctional Facility until September 22, 2015. Claimant immediately requested access to a notary public but was not granted such access until September 30, 2015, after his time to file and serve his claim had expired.
The Court finds that the claimant's inmate medical records, together with the records of Alice Hyde Medical Center, provide defendant with notice of the essential facts and an opportunity to investigate the claim. Defendant will suffer no prejudice in defending the claim.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
Defendant has not offered an affidavit disputing the factual allegations of the proposed claim and the allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
Claimant has not provided the affidavit of a medical expert to support his claim of medical negligence. Notably, defendant has not provided a copy of claimant's medical records to claimant's attorney (as of October 8, 2015) despite claimant's attorney having requested such records on or about August 14, 2015.
In Matter of Perez v State of New York (293 AD2d 918, 919 [3d Dept 2002]), it was held that where medical and/or hospital records provided by a claimant do not demonstrate "that the treatment rendered [by defendant] was medically inappropriate or harmful . . . expert 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."
Conversely, it was held in De Paolo v State of New York (99 AD2d 762 [2d Dept 1984]), that the Court of Claims abused its discretion in denying a medical malpractice late claim application despite claimant's failure to provide a medical affidavit:
"We find that claimant established the appearance of a meritorious claim, despite his failure to submit a medical affidavit. Claimant's medical records establish that he suffered from conditions which, according to the packaging literature of Motrin, should have precluded the use of the drug. Under these circumstances, the appearance of medical malpractice exists even without an affidavit of a medical expert."
Further, a medical affidavit is not required where the alleged wrongful conduct "can be assessed on the basis of common everyday experience and knowledge without reference to [an] expert's opinion" Matter of Caracci v State of New York, 178 AD2d 876, 877 [3d Dept 1991]). The Caracci court went on to state that where the claim sounds in "ordinary negligence, a medical affidavit setting out merit is unnecessary" (Caracci, 178 AD2d at 877).
Here, the claimant has submitted uncontested allegations that he was negligently given and ingested morphine, a highly narcotic drug, by defendant, even though claimant had not been prescribed morphine. The discharge records of Alice Hyde Medical Center support claimant's uncontested allegations.
Claimant has established the appearance of a meritorious claim, despite his failure to submit a medical affidavit, because defendant's alleged medical negligence, the administration by defendant to claimant of an unprescribed narcotic drug, can be assessed at this stage of the action on the basis of the common everyday experience and knowledge of a layperson, without reference to expert opinion (see Caracci, 178 AD2d at 877).
Based upon a balancing of the factors set forth in Court of Claims Act 10 §(6), the Court grants the claimant's motion and claimant is directed to file and serve his claim in compliance with §§ 11 and 11-a of the Court of Claims Act within forty-five (45) days of the filing of this decision and order with the Clerk of the Court of Claims.
December 22, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion, filed November 2, 2015; 2. Affidavit of David P. Elkovitch, sworn to October 8, 2015, and annexed exhibits; 3. Affidavit of James R. Moore, sworn to October 22, 2015; 4. Proposed claim, verified September 30, 2015; 5. Affirmation of Douglas R. Kemp, dated November 17, 2015.