Opinion
# 2012-029-009 Motion No. M-80731
03-12-2012
THOMPSON v. THE STATE OF NEW YORK
Synopsis
Late filing motion alleging malpractice in failing to diagnose claimants breast cancer while she was an inmate at Taconic Correctional Facility is granted. Application was supported by a physicians affidavit. Proposed Claim was adequate in setting forth a range of dates when the claim accrued given the nature of the claim. There is no requirement that a claim state the date it accrued rather what is required is that the time when the claim accrued be stated, which in some cases encompasses a range of dates. Case information
UID: 2012-029-009 Claimant(s): DICA THOMPSON Claimant short name: THOMPSON Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): None Motion number(s): M-80731 Cross-motion number(s): Judge: STEPHEN J. MIGNANO DANKNER, MILSTEIN & RUFFO, P.C. Claimant's attorney: By: Adam B. Kaufman, Esq. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: By: Dian Kerr McCullough, Assistant Attorney General Third-party defendant's attorney: Signature date: March 12, 2012 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, a former inmate at Taconic Correctional Facility, seeks permission to file a late claim alleging medical malpractice and negligence on the part of defendant's employees at the facility. Defendant opposes the motion.
Claimant alleges that on or about July 14, 2010, a physical examination at the facility's medical center revealed a suspicious mass in her left breast, that an ultrasound was performed on August 4, 2010 was negative, that the staff at Taconic failed to take any further steps to ascertain the cause of the mass, that she was released from the facility on December 7, 2010 and that in April 2011, eight months after the mass was initially found and four months after her release from the facility, claimant was diagnosed with advanced breast cancer. The proposed claim alleges that the failure to perform further diagnostic testing amounted to negligence and that the eight-month delay between August 2010 and April 2011 allowed the cancer to spread unfettered with severe consequences.
Court of Claims Act section 10(6) grants the court the discretion to allow a claimant who has not filed a timely claim to nevertheless file a claim, provided the application is made prior to the expiration of the underlying statute of limitations and contains a proposed claim containing the information required by section 11(b), and after consideration of all relevant factors, including whether claimant's delay in proceeding was excusable, whether defendant had timely notice of and the opportunity to investigate the allegations of the claim, whether defendant would suffer substantial prejudice should the motion be granted, whether the proposed claim has the appearance of merit and whether claimant has an alternate remedy. Here, the claim accrued on December 7, 2010 upon claimant's release from the facility. As claimant neither served and filed a claim nor served a notice of intention within 90 days of that date, relief pursuant to section 10(6) is necessary for claimant to proceed.
In support of her application, claimant attaches voluminous medical records which support the factual aspect of her claim. As well, she submits an affidavit from Richard J. Hirschman, M.D., a physician board-certified in internal medicine specializing in hematology/oncology. Dr. Hirschman's opinion is that the medical care received by claimant at Taconic constituted a departure from accepted practice causing an eight-month delay in diagnosing her cancer, a delay that allowed for unfettered growth, and that absent this delay the cancer would likely have not spread and would have been more easily and effectively treated, without necessity for the mastectomy that claimant received. Dr. Hirschman alleges that a negative ultrasound finding is not conclusive since a malignant mass can present as a normal finding on ultrasound and that "[a]ny palpable mass that is persistent and has not been proven to be a simple cyst must receive additional diagnostic work-up until a final diagnosis is determined" (Affidavit of Richard J. Hirschman, M.D., par. 8), and he specifically states that a diagnostic mammogram, biopsy or fine needle aspiration should have been performed.
Defendant, opposing the motion with only an affirmation from counsel, has not presented anything refuting either the essential factual averments of the proposed claim or the medical opinion presented by Dr. Hirschman. In opposition to the motion, defendant maintains that claimant's delay was not excusable, that defendant did not have timely notice of the allegations of the proposed claim and would suffer substantial prejudice should the motion be granted and that the claim lacks the appearance of merit.
Claimant maintains that her failure to timely file the claim is justified because she was "unaware she had been mis-diagnosed by the staff at Taconic until eight (8) months after the alleged negligent act and four (4) months after her release" (Attorney's Affirmation, par. 24). As defendant points out, claimant is silent as to the period from her diagnosis in April 2011 until her motion papers were first served. While the court agrees with claimant as to the period from her release from the correctional facility until her diagnosis, defendant's point as to the subsequent period is well-taken. Thus, claimant's delay is, on this record, only partially excusable. Nevertheless, this is but one factor to consider.
While defendant had no notice of claimant's allegations of malpractice, nor the opportunity or any reason to investigate claimant's treatment at the correctional facility prior to being served with the instant motion papers in December 2011, the court finds that claimant's delay in proceeding will result in absolutely no prejudice to defendant's ability to defend the claim. Although defendant, alleges in conclusory fashion that claimant's delay has "prejudiced defendant's ability to conduct an effective investigation of the facts and to locate and examine witnesses while their memories of the facts are still fresh" (Affirmation in Opposition, par. 17), it supports this assertion only with a citation to a case involving a slip and fall accident on a SUNY campus, where the denial of permission to late file was upheld on such grounds (Quilliam v State of New York, 282 AD2d 590). This case is not at all comparable to a slip and fall claim centering around the condition of pavement on a given date. This case centers around the medical treatment provided to claimant by medical professionals, treatment that is fully documented in defendant's records. There is no changing condition here comparable to the pavement in a slip and fall case. Defendant does not elaborate as to how, under such circumstances, it makes one bit of difference to defendant's ability to investigate claimant's allegations and prepare a defense whether defendant was notified of claimant's intent to sue in March 2011 or December 2011, and the court finds that there is no difference whatsoever and that defendant would suffer no prejudice, much less the statutory substantial prejudice, arising from claimant's delay.
As to apparent merit, claimant's physician's allegations stand unchallenged and the court finds that the proposed claim has the appearance of merit (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Defendant's contention that "[t]he claim fails to state the date of accrual of the cause of action as required by Section 11 (b) of the Court of Claims Act and therefore there is no proper claim over which the Court has jurisdiction" (Affirmation in Opposition, p. 7) confuses two totally distinct concepts. Of course there is no claim over which the court has jurisdiction. That is the basis for claimant's motion. What the court has jurisdiction over at this moment is a motion asking permission to file a late claim. The proposed claim is an exhibit having nothing to do at this point with jurisdiction.
There is no requirement, as alleged by defendant, that the claim set forth "the date" of accrual, rather what is required by the statute is that a claim set forth the "time" when it accrued, a formulation that recognizes that some claims do not have discrete accrual dates but arise from continuing alleged wrongful conduct, as here where the essential allegations are that defendant failed to provide proper medical care for the period beginning August 4, 2010 and ending on her date of release (Epps v State of New York, 199 AD2d 914; see also Foreman v City University of New York, Ct Cl, Schweitzer, J., UID No. 2006-036-534 [May 30, 2006]). What was missing in claimant's initial proposed claim, and has been added to a revised proposed claim submitted with claimant's reply papers, is the latter of the range of dates during which this claim accrued - the date she was released from the correctional facility. Had claimant not submitted this revised proposed claim the court would have directed that the date of release be added to the claim, before it was served and filed, in any event.
The court finds that claimant's delay was partially excusable, that defendant would suffer no prejudice to its ability to defend the claim should the motion be granted and that the proposed claim has the appearance of merit. The court further finds that this is a proper case for discretionary remedial relief pursuant to the statute and that it would be improper, on this record, to deny permission to late file (see e.g. Jomarron v State of New York, 23 AD3d 527).
Accordingly, the motion is granted. Claimant may serve and file her claim, in accordance with all of the requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims, within 40 days from the filing date of this decision and order.
March 12, 2012
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers considered:
Notice of Motion, Affirmation and Exhibits
Affirmation in Opposition
Reply Affirmation and Exhibit (Revised Proposed Claim)