Opinion
4888/08.
Decided April 28, 2008.
Rusk, Wadlin, Heppner Martuscello, LLP, Attys. For Pet., Kingston, New York.
Bartlett, McDonough, Bastone Monaghan, LLP, Attys. For Resp., White Plains, New York.
Upon the foregoing papers, it is Ordered and adjudged that this petition pursuant to General Municipal Law Section 50-e seeking permission to serve a late notice of claim is disposed of as follows:
Section 50-e, subdivision 1, of the General Municipal Law requires that a notice of claim be served upon a municipal corporation within ninety days after the accrual of a cause of action as a condition precedent to the commencement of an action where the underlying claims are founded upon tort. A plaintiff who fails to timely file may move for leave to serve a late notice of claim, as prescribed in General Municipal Law Section 50-e, subdivision 5.
In determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the movant demonstrates a reasonable excuse for the failure to serve a timely notice of claim, (2) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in defending on the merits (citations omitted).
Matter of Acosta v. City of New York , 39 AD3d 629 (2nd Dept. 2007).
The Court notes that the instant motion seeking leave to late serve a notice of claim is made just barely timely within the one year and ninety day period statutorily proscribed for the seeking of such relief. See General Municipal Law § 50-i, subd. 1. The Court also notes petitioner's counsel's statement in his supporting affidavit that he first had been consulted by petitioner with respect to his claims on July 17, 2007, a date clearly beyond the ninety-day time period measured from the accrual date for the timely filing of a notice of claim. However, the Court also notes that there understandably is support in the record to find that petitioner, owing directly to his medical condition, had been primarily concerned with his treatment and recovery and thus unable to timely serve his notice of claim within the first ninety days following the Hospital's alleged malpractice. See Godoy v. Nassau Healthcare Corp., _ AD3d _, 2008 WL 6-7167 (2nd Dept. 2008); McLaughlin ex rel. McCLaughlin v. County of Albany, 258 AD2d 778 (3rd Dept. 1999); cf. Nunes v. City of New York, 233 AD2d 399, 400 (2nd Dept. 1996). Indeed, petitioner avers in his supporting affidavit that he had spent "the first half of 2007 trying to get better," "constantly going to doctors and rehabilitation and having tests done."
It is not disputed that petitioner, after his discharge from the Westchester County Medical Center on December 22, 2006, went later that same night to Benedictine Hospital, where he was diagnosed as suffering from a "hemorrhagic stroke," which included temporal lobe bleeding, requiring petitioner's stay at the Hospital "for almost two months."
It appears that respondent is not raising any issue with respect to petitioner's failure to have served his notice of claim within the first ninety days following the accrual of his action. Rather, respondent appears to take issue with the fact that the record at bar reveals that the bulk of petitioner's delay in seeking leave to serve a late notice of claim, that period of time from when petitioner first consulted his counsel on July 17, 2007, until service of the instant motion on or about March 6, 2008, a period of more than seven and one-half months, is attributable to inexcusable delay on the part of petitioner's counsel. See Fallon by Fallon v. Westchester County Medical Center, 184 AD2d 510 (2nd Dept. 1992).
Petitioner's counsel argues, however, and the record supports his claim, that respondent, over an extended period of time, inexcusably had been uncooperative in providing counsel with all of petitioner's hospital records, including the nurse's notes and medication chart, and that said records were necessary so that a physician could review same. While respondent correctly notes that the inclusion of a physician's affirmation addressing medical malpractice is not legally necessary to support a late notice of claim, see McLaughlin ex rel. McCLaughlin v. County of Albany, supra, 258 AD2d 778; Holmes v. State , 5 Misc 3d 446 (Ct.Cl. 2004), nevertheless, absent a medical opinion that respondent's own medical records documented that petitioner, at the time he had presented to and was treated by respondent, was suffering a "serious event and that urgent anti-coagulation was indicated," petitioner would have been unable to prevail on this motion establishing that respondent had acquired actual knowledge of the essential facts constituting the claim within a reasonable time following the accrual of petitioner's cause of action. See infra; McLaughlin ex rel. McCLaughlin v. County of Albany, supra, 258 AD2d 778.
Most persuasive to the Court's finding that it would be an improvident exercise of the Court's discretion to not grant petitioner the relief he seeks, is the Court's further finding based upon the record at bar that petitioner has demonstrated that respondent necessarily had been on notice of petitioner's malpractice claim within the prescribed ninety-day period or a reasonable time thereafter. While it is well established that a hospital's mere possession of a petitioner's medical records is not tantamount to its having had timely actual knowledge of the facts constituting the claim, see Caruso v. County of Westchester, 220 AD2d 746 (2nd Dept. 1995); D'Anjou v. New York City Health Hospitals Corporation, 196 AD2d 818 (2nd Dept. 1993); Matter of Dominguez v. New York City Health Hosps. Corp., 178 AD2d 186, 188 (1st Dept. 1991), " where malpractice is apparent from an independent review of the medical records, those records constitute "actual notice of the pertinent facts.' (Citation omitted)." Cifuentes v. New York City Health Hospitals Corp. , 43 AD3d 385 (2nd Dept. 2007).
Here, petitioner alleges in his proposed notice of claim, as supported by a physician's affirmation, that respondent had been negligent in failing to properly examine, diagnose and treat petitioner for a stroke condition, in failing to take note that petitioner had a history of deep vein thrombosis, in failing to place petitioner on timely anti-coagulants to minimize petitioner's having a stroke, in having released petitioner with a diagnosis only of mild dehydration, in failing to order a contrast CT or an MRI scan, which would have shown the existence of the clot and in indicating that there was normal neurological examination when in fact there was not. The medical records at bar specifically include the doctor's notations that he had reviewed the triage nurse's notes, which notes include the specific notation that petitioner had a prior "DVT," that petitioner had been complaining of right "facial numbness and dizzyness" (sic) from the preceding day, with current "periods of R arm tingling," along with the physician's own notes that petitioner's dizziness was "of unclear origin," that petitioner's neurological exam showed his affect at the time was "slightly unusual" and that with respect to petitioner's "neuro status" he and the staff "[were] having some trouble deciding whether anything is wrong or he is just an unusual patient." Further, the ambulance report included in the Hospital's records specifically include the notation that petitioner previously had suffered a blood clot "but was taken off coumadin apx 6m/o ago." Notwithstanding the foregoing, it appears from the medical records that the physician never considered the possibility that petitioner was suffering from a stroke. Based upon the foregoing, the Court concludes that the medical records relating to petitioner's treatment and which were at all times in respondent's possession gave respondent ample notice of the relevant facts constituting his claims against respondent. See Bayo v. Burnside Mews Associates , 45 AD3d 495 (1st Dept. 2007); Rivera-Guallpa v. County of Nassau , 40 AD3d 1001 (2nd Dept. 2007); Greene v. New York City Health and Hospitals Corporation, 35 AD3d 206 (1st Dept. 2006).
Notable for its absence, however, is any specific acknowledgment by the physician that petitioner had a past history of blood clots.
Lastly, the Court notes that respondent has not argued that it is prejudiced by the petitioner's delay at bar, and there is no claim that the attending emergency room physician is no longer available. See Hendershot v. Westchester County Medical Center, 8 AD3d 381 (2nd Dept. 2004); Mosie v. County of Nassau, 234 AD2d 275 (2nd Dept. 1996); Greene v. New York City Health and Hospitals Corporation, supra, 35 AD3d 206.
Accordingly, the petition is granted and petitioner's proposed notice of claim annexed to his moving papers is deemed timely served as of the date of entry of this Decision and Order.