Opinion
INDEX 58553/2018
04-01-2019
TAMARA RODRIGUEZ as m/n/g of L.M., Plaintiff, v. WESTCHESTER MEDICAL CENTER and WESTCHESTER COUNTY HEALTH CARE CORPORATION, Defendants.
Unpublished Opinion
DECISION & ORDER
HON. HELEN M. BLACKWOOD, Acting Justice of the Supreme Court
The following papers (e-filed documents 15-34, 37-45) were read on the E-filed motion by WESTCHESTER MEDICAL CENTER and WESTCHESTER COUNTY HEALTH CARE CORPORATION, seeking the dismissal of the complaint (motion sequence 1) and the cross-motion E-filed by TAMARA RODRIGUEZ as m/n/g of L.M. seeking the denial of the motion to dismiss and permission to deem the previously served Notice of Claim timely served nunc pro tunc and to compel production of discovery (motion sequence 2):
Papers
Notice of Motion, Affirmation in Support (Exhibits A & B)
Notice of Cross-Motion, Affirmation/Affidavits in Support (Exhibits A-L)
Affirmation in Reply (Exhibits A-F)
Affirmation in Reply (Exhibit A)
Upon reading the foregoing papers it is
ORDERED that the motion lo dismiss filed by WESTCHESTER MEDICAL CENTER and WESTCHESTER COUNTY HEALTH CARE CORPORATION is denied in its entirety; and it is further
ORDERED that the motion to deem the previously served Notice of Claim timely served nunc pro tunc is granted; and it is further
ORDERED that the motion to compel the production of discovery is denied: and it is further
ORDERED that the parties are ordered to appear in the Compliance Part of the Westchester County Courthouse on April 23, 2019, at 9:30 am for a Compliance On Conference.
On May 30, 2018, TAMARA RODRIGUEZ as m/n/g of L.M. ("plaintiff) filed a summons and verified complaint against WESTCHESTER MEDICAL CENTER ("WMC") and WESTCHESTER COUNTY HEALTH CARE CORPORATION ("WCHCC") (collectively "the defendants") alleging that the defendants departed from the acceptable standard of medical care by failing to perform a timely Cesarean Section on the plaintiff in order to deliver her son, thereby causing the infant lo suffer from perinatal asphyxia and hypoxic ischemic encephalopathy, resulting in permanent brain damage. L.M. was born via C-section on June 30, 2016. A notice of claim was served on December !9, 2017, without leave of court to do so, and a hearing was help on May 29, 2018, pursuant to section 50-H of the General Municipal Law ("GML").
On November 13, 2018, the defendants filed a motion to dismiss the action, arguing that die plaintiff's failure to timely serve a notice of claim warrants the dismissal of the action. On December 6, 2018, the plaintiff filed a cross- motion, seeking the permission of the court to consider the notice of claim timely served, nunc pro tunc, and for the court to compel certain discovery. With respect to the late notice of claim, the plaintiff contends that the motion should be granted since the plaintiffs medical records gave the defendants actual notice of the facts that gave rise to the lawsuit, and therefore, the defendants are not prejudiced by the delay. Additionally, the plaintiff points out that she has a reasonable excuse for the delay, since her son was an infant at the time that the claim accrued.
GML §50~e requires that a notice of claim, "as a condition precedent to the commencement of an action or special proceeding against a public corporation," be served within ninety days after a tort claim arises (GML §50-e[1][a]). When a notice of claim has not been timely served, the law allows for a plaintiff to make an application for leave to serve a late notice, which may be granted by the court in its discretion (GML §50-e[5]). When making the determination whether or not to grant permission to serve a late notice of claim, the court must consider several factors, including "whether the public corporation . . . acquired actual knowledge of the essential facts constituting the claim within the lime specified in subdivision one of this section or within a reasonable time thereafter" and "all other relevant facts and circumstances, including: whether the claimant was an infant" (id). "While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance" (Nurena v. Westchester County, 120 A.D.3d 781, 782 [2d Dept. 2014]; citing Iacone v. Town of Hempstead, 82 A, D.3d 888, 888-889 [2d Dept. 20111). Finally, the determination whether or not "to grant leave to serve a late notice of claim lies within the sound discretion of the Supreme Court" (Blair v. Pleasantville Union Free School Dist., 52 A.D.3d 827, 827 [2d Dept. 2008]).
Here, the plaintiff relies on the medical records generated by the defendants with respect to the birth of L.M. to support her contention that the defendants had actual knowledge of the facts which gave rise to the alleged malpractice. Specifically, she points to portions in the medical records which refer to the delay in the plaintiffs C-section, despite the reoccurring decelerations in the fetal heartbeat, such as a Supplemental Progress Note from the attending physician, which states "I was in the OR with another patient when Dr. Augustus informed me that the other patient was having repetitive decelerations ... I advised that they bring the patient to the OR and await either myself to complete the case and/or Dr. Karmov . . . Dr. Karimov was unable to come in as back up" (Affirmation in Support of Cross-Motion, ¶ 9). Furthermore, the medical records acknowledge that the plaintiff was taken for an "urgent primary cesarean delivery due to nonreassuring fetal status, recurrent large variable decelerations" and that L.M. was "admitted to the NICU for HIE [hypoxic ischemic encephalopathy]" after he was born with APGARs of 1/5/5, a score that is cause for concern (id at ¶10). In fact, the records indicate that upon his birth, L.M. was "limp, pale w/o respiratory effort/movement" and treated with a "Cool Cap by 3 hrs. of age" and a "dose of phenobarbital given for suspected seizure activity after birth" (id at ¶ 11). These entries, according to the plaintiff, indicate that the defendants had actual knowledge of the facts that give rise to the lawsuit, relying on Wally G. ex rel. Yosclin T. v. New York City Health and Hospitals Corporation (27 N.Y.3d 672 [2016]).
When determining whether or not medical records sufficiently give notice to a defendant of the essential facts necessary to properly defend itself in the underlying action, the Court of Appeals in Wally G. explained that "the medical records must do more than 'suggest' that an injury occurred as a result of the malpractice" (27 N.Y.3d at 677). Rather, "the medical records must 'evince that the medical staff, by its acts or omissions, inflicted an [ ] injury on the plaintiff in order for the medical provider to have actual knowledge of the essential facts" (id, citing Williams v. Nassau County Med. Ctr.. 6 N.Y.3d 531, 537 [2006]). The record in the case at bar indicates that the defendants were aware of the repetitive decelerations in the fetal heartbeat, the delay in the C-section due to the unavailability of the attending physician, and the treatment of L.M. upon his birth for the hypoxic ischemic encephalopathy. Therefore, the court finds that the defendants had actual knowledge of the essential facts constituting the claim as soon as possible after the incident and certainly within the 90 days within which the plaintiff was to serve the notice of claim (see Feduniak v. New York City Health and Hospitals Corporation, -N.Y.3d -, 2019 N.Y. Slip Op. 01564 [2d Dept. 2019]).
Moreover, this knowledge is an important consideration in determining whether or not the defendants are prejudiced by the late notice. In order to establish that the defendants are not substantially prejudiced by the delay, the movant must show "some evidence or plausible argument that supports" such a finding, which "need not be extensive" (id). The court finds that the plaintiff has made such a showing based upon the contents of the medical records and the fact that a 50-h hearing was conducted, at which the defendants were given a full opportunity to vet the issues in this case.
Accordingly, given the fact that the medical records gave the defendants actual notice of the facts underlying the action, that the defendants are not substantially prejudiced by the delay, and the plaintiffs infancy at the time the claim arose, the motion to consider the notice of claim timely served, nunc pro tunc, is granted.
As for the plaintiffs motion as it relates to discovery, such motion is denied, as it must be presented in the Compliance Part in accordance with the Westchester Supreme Court Differentiated Case Management Protocol Part Rules.
This constitutes the decision, and order of this Court.