Hamilton v State of New York

[*1] Hamilton v State of New York 2012 NY Slip Op 51672(U) Decided on July 18, 2012 Ct Cl Marin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 18, 2012
Ct Cl

Archibald Hamilton, Claimant,

against

State of New York, Defendant.



M-81144



For Claimant:

Ross and Hill

By: James Ross, Esq.

For Defendant:

Eric T. S

Alan C. Marin, J.

Claimant Archibald Hamilton moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In the proposed claim, which sounds in medical malpractice, it is alleged that on November 18, 2010, Mr. Hamilton had surgery at SUNY Downstate Medical Center, which consisted of the "amputation of a portion of the nail bed and nail of the fourth finger. As a result of the surgery and stay at the hospital on that date claimant sustained a serious infection," which ultimately led to his admission from November 30, 2010 through December 18, 2010. It is further alleged that claimant was subsequently treated as an outpatient until August 18, 2011, and "still has loss of use and motion of his right hand."

In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[FN1]

Before addressing these factors, it is necessary to lay out the history of claimant's attempts [*2]to obtain his own medical records in this matter, because as set forth below, the records relate in several ways to several of the six factors. Claimant submits the affidavit of Chrissy Cruzado, a secretary at Ross and Hill, who details her efforts to obtain the records on behalf of claimant. Those efforts include multiple requests directly to the hospital, both written (with the inclusion of HIPAA authorizations) and by telephone, as well as two written requests with HIPAA authorizations to Dr. Pamela Levine, the doctor who performed surgery on claimant and who later treated him on an outpatient basis at Downstate following his November 30, 2010 to December 18, 2010 admission.

The result of these efforts was that claimant was able to obtain the hospital record of the November 18, 2010 surgery, and records from visits to the emergency room on November 20 and 24, 2010. However as to his admission from November 30, 2010 to December 18, 2010, he was able to obtain only a one-page discharge summary, and as to his outpatient treatment by Dr. Levine, he was able to obtain only a one-page record relating to a May 31, 2011 visit. Ms. Cruzado states that after her numerous attempts to obtain the records from the hospital, she was ultimately advised by "Denise" of the hospital records room that "they could not locate the balance of petitioner's missing records." We have no information as to how Dr. Levine's office responded.

Turning to an analysis of the six factors under the Act, the first three factors of notice, opportunity and prejudice are frequently analyzed together since they involve similar considerations. The mere possession of medical records, whether complete or not, is insufficient to impute notice. See e.g. Matter of O'Shea v State of New York, Motion No. M-59853 (Ct Cl, Marin, J., Nov. 5, 1999), affd 278 AD2d 237 (2d Dept 2000); and Conroy v State of New York, 192 Misc 2d 71 (Ct Cl 2002). As to an opportunity to investigate, claimant has failed to demonstrate on this motion that defendant had any reason or opportunity to investigate prior to the bringing of this motion. With respect to prejudice, however, other than a conclusory assertion thereof, defendant fails to demonstrate that it will be prejudiced by the granting of this motion that it will be prevented from mounting a defense. To the extent that such defense may be based, in part, on the missing records (which could eventually be located), the hospital can hardly complain given its responsibility for them.

A lawsuit against Dr. Levine, presumably an attending physician, lies in Supreme Court. This may afford an alternate remedy within the meaning of §10.6.

As to excuse, claimant points to his inability to obtain his medical records. There is no indication that claimant attempted to obtain the records within ninety days of the November 18, 2010 surgery (as set forth above, claimant alleges that it was because of the "surgery and stay at the hospital on that date that claimant sustained a serious infection"). However, claimant argues that he was continually treated through August 18, 2011 (and Ms. Cruzado indicates that she began her efforts to obtain the records on June 15, 2011), and if so, claimant would have stated a sufficient excuse for the purposes of the Act.

The remaining factor to be considered is whether the proposed claim appears meritorious. As a general proposition, when a motion to file a late claim asserts medical malpractice, a physician's affidavit of merit should be included with the application. Rosario v State of New [*3]York, 8 Misc 3d 1007(A) (Ct Cl 2005).[FN2] But even with an affidavit from a doctor, merit may be absent when the submission is pro forma and lacks "some explanation as to what was done wrong and why it was a departure from good and accepted medical standards." Favicchio v State of New York, 144 Misc 2d 212, 214 (Ct Cl 1989).

Claimant has submitted the affidavit of Andrew Sattel, M.D., who reviewed the medical records that claimant was able to obtain. It is anything but pro forma; the four-page affidavit is detailed, but fairly sets forth its limitations: for example, "I cannot determine . . . why vancomycin was chosen in lieu of other antibiotics . . ." Dr. Sattel essentially states that he will need the missing records to make an ultimate determination, but that "[i]t is certainly possible that the progressively worsening infection which led to the admission of November 30, 2010, and the deformity and necrosis of the patient's finger top, resulted from malpractice . . ."

Under the circumstances, the Court finds that claimant meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim "must not be patently groundless, frivolous, or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

In view of the foregoing, having reviewed the submissions [FN3] and having considered all of the factors enumerated in the Act, IT IS ORDERED that motion no. M-81144 be granted, and that within sixty (60) days of the filing of this Decision and Order, claimant shall serve and file a properly verified claim in the form of the proposed claim annexed as exhibit H to his moving papers. In serving and filing the claim, claimant shall comply with all of the requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims, including the payment of a filing fee in accordance with Court of Claims Act § 11-a. New York, New York July 18, 2012 ALAN C. MARIN Judge of the Court of Claims [*4] Footnotes

Footnote 1:See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).

Footnote 2: In Rosario, see the cases cited in footnotes 5 through 10.

Footnote 3:The following were reviewed: claimant's notice of motion with claimant's petition, attorney's affirmation, the affidavit of Chrissy Cruzado and exhibits A through H; defendant's affirmation in opposition; and claimant's reply affirmation with doctor's affidavit.