S.C. v New York City Health & Hosps. Corp. (Harlem Hospital)
Annotate this CaseDecided on June 9, 2006
Supreme Court, New York County
S.C. and K.C., Infants by their Mother and Natural Guardian, D.C., Plaintiffs,
against
New York City Health and Hospitals Corporation (Harlem Hospital), William N. Ayala, and Striver 140 LLC, Defendants.
XXXXX
For Plaintiffs: Fitzgerald & Fitzgerald, P.C.
For Defendants: Wilson, Elser, Moskowitz, Edleman & Dicker.
Pro Se: Striver 140 LLC.William N. Ayayla.
Stanley L. Sklar, J.
This is a medical malpractice/negligence action commenced by a mother on behalf of her infant son and daughter, who allegedly were poisoned by lead paint in their apartment. The owner of the building and one of its principals are named as defendants as is the New York City Health and Hospitals Corporation ("HHC") which operated Harlem Hospital's ("the hospital") clinics which provided the infants' medical care. The infants' mother now seeks an order deeming the untimely notice of claim previously served in November 2003 on behalf of her daughter timely served nunc pro tunc. HHC cross moves for an order dismissing this action for failure to timely serve a notice of claim.
In the exercise of my discretion the motion is granted and the notice of claim appended to the motion as exhibit "14" is deemed timely served upon service of a copy of the order to be settled hereon with notice of entry. Therefore the cross motion is denied.
It is claimed in this case that the hospital's agents and employees committed malpractice by failing to follow the specific mandates set forth inter alia in 10 NYCRR subpart 67-1 which among other things require primary health care providers to give anticipatory guidance to parents of children under the age of six, regarding the main causes of lead poisoning and how to prevent lead exposure. The regulations require such health care providers at each routine visit, starting at least by age six months, to assess the child for high dose lead exposure using an assessment tool based on "currently accepted public health guidelines". If the child is found to be at risk for high dose exposure then blood lead screening is required to be performed. If no risk of high dose exposure is found upon assessment the primary care provider is still required to have blood lead screening performed at around the ages of one and two. The test results are required to be given to the parents. Primary health care providers must provide or make reasonable efforts to ensure that risk reduction education is provided to a parent or guardian of children whose blood levels are found to be equal to or greater than 10 micrograms per deciliter of whole blood. [*2]
The plaintiff's infant daughter was born in April 2001. On November 20, 2003, i.e. about 2 ½ years after her birth, plaintiff served a notice of claim on HHC alleging among other things a failure to comply with the foregoing obligations and that as a result the infant suffered from lead poisoning and its sequela. A 50-h hearing was held in February 2004. In November 2005 this action was commenced on behalf of the daughter and also a son, who was about two years older than his sister, alleging that they both suffered from the effects of lead poisoning due to HHC's agents' malpractice.
Plaintiff mother now seeks an order deeming the notice of claim timely served nunc pro tunc, claiming that the hospital never performed a risk assessment including asking her about the condition of her apartment nor gave her anticipatory guidance with respect to her son or daughter and that the hospital never gave her blood test results. The mother claims on this application that the first time she was given information that lead was dangerous and could harm her children was in April 2003, when the Department of Health informed her that her daughter had an elevated lead level of 40 ug/dl and then inspected her apartment and found lead on the walls. See mother's aff of May 26, 2005.
The mother further asserts that at some unspecified time after receiving a prior letter dated August 16, 2002 from the Department of Health stating that her daughter had a lead level of 10 or higher, she contacted her current lawyer after seeing television commercials indicating that a landlord could be sued if lead were found in an apartment. See mother's aff ¶ 24 The mother, whose husband evidently understood English, asserts that she did not read English "at all"(Id ¶ 14; But see 50-h hearing transcript, pp 38-40), so that she was not sure what the August 2002 letter meant. The letter stated that lead can be toxic to humans and that the more there was and the longer it stayed in the body, the more harm could be done. See motion, exh 8 The letter provided a follow-up phone number for questions about lead poisoning. The mother claims that she simply showed the letter to the nurses and a Dr. Ortiz, who regularly treated her daughter at the hospital, who allegedly told her nothing.
According to the mother the first time she became aware that she had a claim against the hospital (as opposed to against the landlord) was when she was so informed by her counsel in September 2003 after her counsel had received the medical records and noticed that the chart allegedly reveled the hospital's failure to provide risk assessments, anticipatory guidance and timely lead blood testing. A notice of claim was then served on November 20, 2003, more than 90 days after most of the treatment in issue was rendered by the hospital.
While the record may present issues of credibility as to at least when the plaintiff mother became aware of the dangers of lead and the fact that her children were at risk for being injured, in the exercise of my discretion the plaintiffs' motion is granted and the notice of claim previously served on behalf of plaintiff's daughter is deemed served nunc pro tunc upon service of a copy of the order to be settled hereon with notice of entry.
It is undisputed that the mother was unaware that HHC could be liable for the alleged injuries to her daughter and as a result of conditions in her apartment until she was so informed by her attorney in September 2003. Thus I find her excuse in not timely serving the notice of claim excusable. While plaintiff could then have served the notice of claim a bit more promptly, its service in November 2003 was not unduly delayed, and there is no claim here that HHC promptly returned and rejected it as untimely. Indeed it held a 50-h hearing about 3 months [*3]later. Moreover this is not the usual malpractice case because here there are regulations governing the specific obligations of the health care providers to the plaintiffs. HHC's records either substantiate the plaintiff's claims or they do not. Indeed HHC's counsel refutes the mother's claims that risk assessments were never performed by it and that she was never given counseling about the risks of lead exposure and asserts that such claims are undercut by its records. See Caiazzo aff ¶¶ 3-6, 21, 22, 40 Also the hospital was aware of all of the infant daughter's blood tests showing the presence of lead as well as the fact that beginning in late 2002 the infant daughter was diagnosed with speech delay and that the parents complained of her being overactive and displaying behavioral problems for which the child was referred to the hospital's department of child psychology. Moreover, it is undisputed that the hospital physician, Dr. Ortiz, who allegedly was the one who principally treated the infant daughter, is still in HHC's employ. That one nurse, Olive Brown, is no longer a the hospital's employe does not mean that she is unavailable to be deposed or to testify in this case. Matter of McMillan v City of NY, 279 AD2d 280 (1st Dept, 2001) Also, there are presumably records and other evidence available from city agencies and the landlord as to the apartment's condition, which would be relevant to HHC's defense concerning whether the child was at risk for lead exposure.
In the absence of demonstrated prejudice, the infant should not be penalized for any delay on the part of the mother or her counsel. Cruz v NYCH & H Corp., 13 AD3d 130 (1st Dept, 2004) See also, Moody v NYCH&HC, 2006 WL 1319760 (1st Dept); Matter of Tapia v NYCH&HC, 27 AD3d 655 (2nd Dept).
In conclusion, the motion is granted and the cross motion is denied.
Settle order.
Dated: June __ , 2006
60 Centre Street
New York, NY
J.S.C.
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