Opinion
# 2014-018-518 Motion No. M-84801
06-13-2014
SALVATORE A. SISINNI v. STATE OF NEW YORK
MENTER, RUDIN & TRIVELPIECE, P.C. By: Jane G. Kuppermann, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Maureen A. MacPherson, Esquire Assistant Attorney General
Synopsis
Late claim motion granted.
Case information
| UID: | 2014-018-518 |
| Claimant(s): | SALVATORE A. SISINNI |
| Claimant short name: | SISINNI |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-84801 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | MENTER, RUDIN & TRIVELPIECE, P.C. By: Jane G. Kuppermann, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Maureen A. MacPherson, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 13, 2014 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant brings a motion seeking permission to file a late claim pursuant to Court of Claims Act section 10 (6). Defendant opposes the motion.
The proposed claim alleges that on March 5, 2013, at approximately 6:00 a.m., while Movant was a patient at Upstate University Hospital at Community General in Syracuse, New York, he slipped and fell while going to the bathroom unattended. He asserts that based upon the evaluations and assessments of Movant by the defendant's employees and/or agents and the medications he was taking, he should not have been out of bed without assistance going to the bathroom, particularly during the night. As a result of the fall, he suffered a compression fracture at the L-1, L-2 vertebral body.
A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the Court, to file a claim which complies with section 11 of the Court of Claims Act, 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 CPLR (Court of Claims Act § 10 [6]). The motion is timely (Court of Claims Act § 10 [6]; CPLR 214-a, 214 [5]).
In reviewing the application, the Court must consider the six factors listed in Court of Claims Act section 10 (6) and any other relevant factors. The presence or absence of any one factor is not determinative; instead, it is a balancing of all of the factors (Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965
Movant provides no excuse for the delay in failing to timely serve a notice of intention or to file and serve a claim in accordance with Court of Claims Act section 10. Although not determinative, this factor weighs against granting the application.
Turning to whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, or whether the State would suffer prejudice if the application was granted, these factors, being interrelated, will be considered together. Movant asserts that the State had notice of the essential facts relating to Movant's allegations and, in fact, conducted an investigation and will, therefore, suffer no prejudice. Defendant points to the fact that no notice of intention was served and argues that before this application, Defendant had no notice of any alleged malpractice. However, the statute requires only notice "of the essential facts." Although the Court agrees with Defendant's counsel that merely possessing medical records does not put the State on notice of the facts underlying a potential claim, having a patient who allegedly required assistance to go to the bathroom, fall alone in the bathroom while under the hospital's care, and suffer a fractured vertebrae would seem to be the type of incident that would not lay dormant in a medical record but would generate some reporting requirement or notification to someone in authority (see Avila v State of New York, 131 Misc 2d 449 [Ct Cl 1986] [copy of statement about event sent to the assistant director established actual notice]; Carmen v State of New York, 49 AD2d 965, 966 [3d Dept 1975] ["abundant notice" with a report, State provided medical attention and a Workers' Compensation claim]; Anadio v State of New York, UID No. 2002-032-032 [Ct Cl, Hard, J., Mar. 31, 2003] [report filed with State involving serious accident sufficient notice]).
Even if the State, however, did not have adequate notice of this occurrence, from the medical records provided with this application, there are contemporaneous notations with references to the incident and potential witnesses. It is evident that the hospitalists evaluated Movant after the fall. These records will assist the State in conducting an investigation. Moreover, Defendant's attorney's affirmation alone is not sufficient to show that the State will suffer prejudice if this application is granted (Matter of Smith v State of New York, 63 AD3d 1524 [4 Dept 2009]; Matter of Powell v State of New York, 187 AD2d 848 [3d Dept 1992]). The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
Movant asserts both ordinary negligence and medical malpractice causes of action in the proposed claim. A negligent act or omission "that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice." (Bleiler v Bodnar, 65 NY2d 65, 72 [1985]). The distinction is based upon looking carefully at exactly what Movant asserts Defendant did wrong. In Scott v Uljanov, 74 NY2d 673, 674 [1989], a 46-year-old, who was being treated in an emergency room after consuming Valium and alcohol with a .29 blood alcohol level, climbed to the end of the bed in which he was placed, fell out and was injured. The rails on the bed were up at the time. The Court of Appeals found that the plaintiff's allegations involved the rendition of medical treatment by "challeng[ing] the hospital's assessment of the supervisory and treatment needs of its highly intoxicated patient during his initial emergency room care." (Scott v Uljanov, 74 NY2d at 675). Where the allegations in the pleading assert the defendant's negligent conduct arose in the context of medical diagnosis and treatment, that is, the failure to properly assess the patient's condition for an appropriate level of supervision and assistance, the cause of action was found to sound in medical malpractice (see Carthon v Buffalo Gen. Hosp., Deaconess Skilled Nursing Facility Div., 83 AD3d 1404 [4 Dept 2011]; Smee v Sisters of Charity Hosp. of Buffalo, 210 AD2d 966 [4 Dept 1994]; Fox v White Plains Med. Ctr., 125 AD2d 538 [2d Dept 1986]). Where the basis for the claim is the failure to prevent harm to the patient, separate from the patient's diagnosis, care and treatment, or a failure to carry out a physician's instructions, such allegations involve ordinary negligence (see Reardon v Presbyterian Hosp. in City of N.Y., 292 AD2d 235 [1 Dept 2002]; Edson v Community Gen. Hosp. of Greater Syracuse, 289 AD2d 973 [4 Dept 2001]). Here, Movant's allegations raise issues of a failure to properly care for him by failing to properly assess his risk of falling and mobility, or to provide proper assistance given his medical condition and prescribed medications. This clearly involves specialized knowledge related to the proper care and treatment of Movant's medical and physical condition.
To support his medical malpractice cause of action, Movant submits the affirmation of Dr. Richard Bassin, who is licensed in New York State and Board Certified in General Surgery. Although Dr. Bassin's affirmation is conclusory and does not set forth, with a reasonable degree of medical certainty, that Defendant breached the standard of care, his affirmation coupled with the medical records provide, at least minimally, reasonable cause to believe that a valid cause of action exists. The medical records reflect that as of March 3, 2013, Movant required at least one assistant for transfers and to ambulate. The day before Movant's fall, he was assessed as a moderate fall risk, chair-bound, and required "assistance with elimination." Movant fell during the early morning of March 5, 2013, in the bathroom, allegedly without assistance. After the fall, Movant was diagnosed with a wedge compression fracture at the L-1 vertebral body. the Court finds this factor weighs toward granting Movant's application for a medical malpractice cause of action.
The final factor to be considered is whether Movant has any other available remedy. As defense counsel notes, Movant may have a partial remedy by bringing an individual action against the physicians in Supreme Court.
Upon balancing all of the factors in the Court of Claims Act section 10 (6), this Court GRANTS the motion and directs Movant to file and serve the proposed claim in compliance with the Court of Claims Act and all applicable Court rules, and to pay the filing fee (Court of Claims Act §§ 11 and 11-a).
June 13, 2014
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion:
1) Notice of Motion.
2) Affidavit of Jane G. Kuppermann, Esquire, sworn to March 4, 2014, in support, with exhibits attached thereto.
3) Claimant's Memorandum of Law.
4) Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney General, in opposition.