Perez v N.Y.C. Health & Hosps. Corp.

[*1] Perez v N.Y.C. Health & Hosps. Corp. 2009 NY Slip Op 50249(U) [22 Misc 3d 1123(A)] Decided on January 14, 2009 Supreme Court, Bronx Co McKeon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 7, 2009; it will not be published in the printed Official Reports.

Decided on January 14, 2009
Supreme Court, Bronx Co

Perez, Plaintiff, v N.Y.C. Health and Hospitals Corp., Defendant.



16565/03

Douglas E. McKeon, J.

Plaintiff's motion for an order deeming the Notice of Claim previously served as having been served timely, nunc pro tunc, or granting Plaintiff leave to file a new Notice of Claim, and cross-motion by the Defendants for an order dismissing Plaintiff's complaint for failure to comply with the requirements of General Municipal Law §50-e are consolidated for disposition and decided as follows:

This is a medical malpractice action based on allegations of negligent prenatal labor and delivery care which allegedly caused permanent injury to the infant-Plaintiff. Initially, Plaintiff served a Notice of Claim on December 20, 2001. That Notice of Claim was filed more than three years subsequent to the alleged malpractice without leave of this court. Instead of seeking leave of the court to deem the late Notice of Claim timely, Plaintiff commenced this action by filing a summons and complaint almost one and a half years later, on May 5, 2003. Plaintiff's counsel now seeks leave of this court, almost seven years after first filing a late Notice of Claim, and just one month before the statute of limitations will expire, to file a late Notice of Claim.

Pursuant to General Municipal Law §50-e, the Legislature established the filing of a Notice of Claim as a condition precedent to bringing suit against any public corporation. In determining whether to allow a late filing, the court must consider various factors, including whether the claimant was an infant, whether the claimant has demonstrated a reasonable excuse for failing to serve a timely Notice of Claim, whether the public corporation has acquired actual knowledge of the facts constituting the claim within ninety days of its accrual or a reasonable time thereafter, and whether the delay will substantially prejudice the public corporation in defending the matter on the merits. See General Municipal Law §50-e (5).

Because this application is made within the statute of limitations, tolled by the Plaintiff's infancy [*2]for ten years from the date of the infant's birth, the court has discretion to consider the various factors set forth in General Municipal Law §50-e.

Based on the entire record before it, the court finds that Plaintiff has failed to meet the criteria set forth in General Municipal Law §50-e (5) and thus, the application is denied and the cross-claim granted. Although Plaintiff claims that the delay in bringing the instant application is due to infancy, the court finds the argument to be weak. Counsel had access to the mother's and the infant's Lincoln charts which are the pertinent records in this case. Bringing the instant application did not require a physical examination of the Plaintiff so that it is immaterial that counsel was able to obtain a physical examination of infant only recently (as the infant was in foster care). Plaintiff's argument is further weakened by the fact that counsel had enough information to file a medical malpractice action with the certificate of merit on May 5, 2003. If the 'intervention of the child neglect proceedings' did not delay the commencement of this suit brought on May 5, 2003, more than five years ago, any argument that it has delayed the filing of the instant application until September 2008 is without merit. Plaintiff also argues that the late filing is partially due to the infant-Plaintiff's mother's youth. The mother was sixteen at the time of the infant's birth. The court notes that Ms. Torres turned eighteen on November 27, 1999 but did not contact counsel until two years later in December 2001.

The court finds that Defendant did not acquire actual notice of the facts underlying this claim within ninety days or a reasonable time thereafter as the maintenance of the records did not provide actual knowledge of the claim of malpractice. Plaintiff's papers do not demonstrate that Defendant had actual knowledge of the facts constituting the claim. Instead, the court finds that the medical records merely demonstrate Plaintiff's theory of the case. The expert affidavits ignore portions of the chart and Plaintiff's own testimony which illustrate that the root of the infant-Plaintiff's problems has never been determined, even after genetic tests. Further, although the precise source of the infant's problems have never been determined, the infant's diagnosis has always been 'congenital hypotonia'.

Plaintiffs argue that Javier's low birth weight, low Apgars and multiple medical problems including hypotonia from birth was a product of Lincoln's staff's failure to prevent a premature birth. However, a review of the records does not reveal a causal link between actions taken by staff members and injury to the infant. The records indicate that the prenatal course and labor and delivery were normal except for the genetic testing during the pregnancy for which Plaintiff's mother was counseled. Where, as here, there is little to suggest injury attributable to malpractice during delivery, a recording of the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim. See Williams v. Nassau County Medical Center, 6 NY3d at 538. Although Plaintiff alleges that Defendant's staff failed to notice intrauterine growth retardation and a supposed discrepancy in growth and dates, Plaintiff fails to mention that Lincoln's analysis of sonograms on April 6, 1998 and May 27, 1998 found that the mother had given the wrong date of her last menstrual period which was confirmed based on consistent and adequate interval growth during the time period. Clearly, the staff monitored the fetal growth. Plaintiff's arguments do not establish notice but merely allege departures and only recite to certain portions of the [*3]record. For example, in citing two notes of September 2 and September 30, as indicative of an arrest in fetal growth, Plaintiff fails to mention that notes of October 7 indicate that the fundal height at the time had gone from thirty seven centimeters from September 30, to thirty nine centimeters on October 7. A non stress test was performed on September 30 and notes regarding that test state the fetal heart rate was reactive and that the fundal heights corresponded with the correct gestational age. Plaintiff's expert claims that were irregular fetal heart tracings on October 8. However, this contention is contraindicated by notes on the chart on that day and throughout the labor and delivery period which state that the fetal heart rate was reassuring and constantly reactive with no decels and positive acceleration. On October 10, delivery took place without any noted complications. At birth the infant's Apgar scores were six and the infant was noted to have respiratory distress and low muscle tone. It is important to note that the cause of these problems was never determined. Furthermore, the cord blood gases did not indicate birth asphyxia or hypoxia. In the end, the infant was discharged from Lincoln with a diagnosis of congenital hypotomia. No treating doctor has attributed any of Plaintiff's injuries to anything that occurred during the prenatal or labor and delivery course at Lincoln. Instead, and unfortunately, the infant has been diagnosed with congenital problems. Plaintiff's expert's affidavits, which the court finds to be vague and conclusory, fail to establish that the hospital had actual notice of the facts underlying the claim.

Finally, the court finds that Plaintiff has failed to establish a lack of prejudice. Plaintiff's counsel argues that Defendant is not prejudiced by virtue of the actual notice provided by the hospital records. As the court has found that Defendant did not have actual knowledge based on the medical records, that argument is rejected. Furthermore, the court notes that the physician who delivered the infant, Dr. Joan Valle, has not been in the employ of the hospital since 2000 and is not under its control. Clearly, Plaintiff's delay has prevented Defendant from investigating the claim while the facts were fresh and may well have frustrated the ability even to locate and speak with the doctors involved in the Plaintiff's care. The First Department has held that lengthy delays in service can lead a court to infer substantial prejudice and the facts herein support the validity of such an inference. See Matter of Nieves v. New York City Health and Hospitals Corporation, 34 AD3d 336 citing Leader v. Maroney, Ponzini and Spencer, 97 NY2d 95 (2001).

Plaintiff's motion for leave to file a late Notice of Claim herein almost ten years after the alleged malpractice is denied. The court finds there is no reasonable excuse for the delay in filing the instant application, nor for counsel's inexplicable seven year delay in seeking the instant relief. While lack of an excuse may not be fatal to Plaintiff's application, the lack of an excuse together with the lack of actual notice and Plaintiff's failure to demonstrate lack of prejudice is fatal to this application. Based on Plaintiff's failure to meet a condition precedent to suit against NYCHHC, Plaintiff's motion is denied in its entirety and the cross-motion by NYCHHC is granted and the action dismissed.

So ordered.

1/29/2009 NYLJ 28, (col. 1)