Gutierrez v New York City Health & Hosps. Corp.

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Gutierrez v New York City Health & Hosps. Corp. 2012 NY Slip Op 30190(U) January 26, 2012 Supreme Court, New York County Docket Number: 110543/08 Judge: Douglas E. McKeon Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 112712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 38 Justlce INDEX NO, MOTION DATE -v- The followlng papere, numbered 1 to were read qn thls motlon to/for PAPERS NUMBFPFfl Notlce of Motlonl Order to Show Cause - Affldavlts Answerlng Affidavits - Exhlblta ... - Exhlblts Replying Affidavits Cross-Motion: &Yes 0 No Upon the foregoing papers, it i ordered that this motlon s Motion is decided as per the annexed Memorandum Decision. Check one: dFINAL DISPQ$lTlON [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK WALLY GUTIERREZ, an infant by his mother and natural guardian, YOSELIN TERRERO, MEMO W N D U M DECISION Plaintiffs, Index No. 1 10543/08 -against- NEW YORK ClTY HEALTH AND HOSPITALS CORPORATION (METROPOLITAN HOSPITAL), FILED Defendant. _____""_"_l_fr_f_____-----------I--r--------------------------------------- X HON. DOUGLAS E. MCKEON: JAN 27 2012 NEW YORK COUNTY CLERK'S OFFICE Plaintiffs motion pursuant to General Municipal Law Cj 50-e seeking leave to file a late notice of claim is denied aiid cross-inotion by defendant New York City Health and Hospitals Corporation's ("NYCHHC") pursuant to General Municipal Law 5 50-e(5)to dismiss for failure to timely file a notice of claim is granted to the following extent: In this medical malpractice action, plaintiff alleges that negligence and medical malpractice occurred at Metropolitan Hospital beginning when the infant's mother received prenatal care through the infant-plaintiff s birth on June 15,2005 and his discharge from Metropolitan Hospital on August 10,2005. Plaintiff alleges that the defendant failed to assess utero placental sufficiency and fetal well being, failed to admit the plaintiff into the hospital, failed to diagnose and treat placental abruption and failed to render appropriate neonatal care. As a result thereof, plaintiff claims that the infant suffers froin global developmental delays, brain damage, mental retardation, neurological/cognitive deficits, and seizure disorder. Notably, it is undisputed that the infant was delivered at 26 weeks gestation on June 15, 2005 and that this premature delivery was necessary due to the mother's condition at that time. Upon delivery, the infant was admitted to the Neonatal Intensive Care Unit at Metropolitan Hospital and discharged on August 10,2005. [* 3] Signiilcantly, this court must now decide whether plaintiff is in compliance with the notice of claim requirements of the General Municipal Law, pre-conditions to allowing this action to be maintained. Thus, the most relevant question at this time is whether there is documentary evidence in the medical records that puts defendant on actual notice as to negligent conduct by the hospital staff. This court acknowledges that if this motion were made on summary judgment grounds, it would be denied in light of the conflicting expert testimony. However, a summary judgment motion is not before this court, rather an application for leave to file a late notice of claim and cross-motion to dismiss for failing to file a late notice of claim is one based on procedural grounds and will be decided accordingly as follows: Based on the dates of the alleged malpractice, a notice of claim should have been served on NYCHHC by November 8,2005 at the latest, ninety (90) days from the date ofthe infant s discharge from the hospital. See CPLR 4 214(a); General Municipal Law 5 50-e. The notice of claim was received by NYCHHC on January 22,2007, one and a half years after the infant was discharged from the hospital. The instant application was made on or about January 3 1,201 1, five ( 5 ) years and seven (7) months after the alleged claim arose. Plaintiff sets forth that in considering all factors when deciding a motion seeking leave to file a late notice of claim, as set forth in Williams v. Nassau Counly Med, Ctr., 6 NY3d 53 1 (2006)) this court should grant the instant motion because the key factor, actual knowledge ofthe essential facts constituting the claim is established here, supported by plaintiffs experts affirmations. Plaintiff sets forth that because the hospital was aware ofthe infant s potential for poor outcome (which defendant acknowledges is accurate, though attributes the poor outcome to prematurity), they were aware of a potential claim for malpractice. [* 4] Defendant argues in support of its cross-motion and in opposition to plaintiffs motions that dismissal is warranted as plaintiff failed to comply with the statutory preconditions to suit against NYCHHC by not serving a timely notice of claim. Additionally, without establishing that the purported departures are sufficiently evident in the hospital chart or that the hospital chart contains any evidence that these purported departures were the cause of the infant s condition, plaintiffs application must be denied. Although this case is distinguishable from Williams v, Nussau County Medical Ctr., supru in that there is predictable lasting harm to the child, this court finds that plaintiff failed to prove that the medical records alone evince that defendant, by its acts or omissions, inflicted injuries on the infant-plaintiff. See Webb v. New York City Health and Hosps. Corp., 50 AD3d 265 (1st Dep t 2008); Seymor v. New York Ct Heulth and Hosps. Corp., 21 AD3d 1025 (2d Dep t 2005); Koster iy v. Greenburg, 120 AD2d 644 (2d Dep t 1986). There is insufficient evidence to support the finding that the infant s condition upon delivery and the subsequent issues that developed during his admission to the NICU were caused by any malpractice as opposed to the infant s extremely premature birth, which could not have been avoided. Finally, the assertions that the hospital staffs departures from the standard of care are documented in the chart, and thus, the defendant was provided with actual notice as to the negligent conduct by the staff which caused the infant-plaintiff to suffer injury is unsupported. Plaintiffs expert affirmations interpret the hospital chart in amanner consistent with plaintiffs theory of liability but do not address the latter issue. Finally, this court is less concerned with plaintiffs delay in filing the notice of claim and bringing the instant motion, however, plaintiff fails to offer a reasonable excuse for his more than four year delay (from the time he filed a notice of claim) in making the instant application. Although the lack of rcasonable excuse i s not fatal by itself, plaintiff has also failed to demonstrate actual [* 5] noice of the pertinent facts underlying the claim within 90 days or a reasonable time thereafter. The lack of a reasonable excuse for the delay and the fact that defendant did not have actual knowledge of h e essential facts underlying the claim amounts to prejudiced here, thus warranting dismissal. Accordingly, plaintiffs motion is denied, defendant s cross-motion is granted and plaintiffs complaint is dismissed in its entirety as against NYCHHC. This constitutes the decision and order of the court. DAe: January 26,2012 New York, New York JAN 27 2012 NEW YORK COUNTY CLERK S OFFICE

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