Steinberg v State of New York

[*1] Steinberg v State of New York 2004 NY Slip Op 51507(U) Decided on November 9, 2004 Ct Cl Scuccimarra, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2004
Ct Cl

JONATHAN STEINBERG, Claimant,

against

THE STATE OF NEW YORK, Defendant.



108971



APPEARANCES:

For Claimant:

ELMER ROBERT KEACH, III, ESQ.

For Defendant:

HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL

BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL

Thomas H. Scuccimarra, J.

MOTION TO DISMISS

Jonathan Steinberg, the Claimant herein, alleges in Claim Number 108971 that Defendant's agents failed to provide him with adequate medical care while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS) at various correctional facilities from November, 2000 to June 25, 2003. It appears Claimant was [*2]ultimately diagnosed with the disease sarcoidosis on March 8, 2002. Claimant alleges his medical condition was ignored, improperly diagnosed, and then continued to be untreated.

A notice of intention to file a claim was served on the office of the Attorney General on June 4, 2002, and the claim itself was served on the Attorney General's Office on April 16, 2004. In the notice of intention, Claimant's treatment for medical ailments by DOCS personnel is alleged to have commenced in November 2000, and to have continued thereafter until diagnosis by personnel at Albany Medical Center on March 8, 2002.

The Assistant Attorney General states that the Claimant cannot avail himself of the "continuous treatment" doctrine to stay the time within which the claim should have been served and filed based upon a continuing course of treatment related to the original medical condition. Claimant alleges that he was seen by a "multitude of medical providers" at various DOCS correctional facilities between November 2000 and June 25, 2003, when his incarceration ended. Defendant argues that because the continuing treatment was provided by different physicians, Claimant must show ". . . 'agency or other relevant relationship' between the health care providers . . . (citations omitted). Mere common ownership of correctional facilities by the defendant is insufficient to trigger the continuous treatment doctrine. See Allende, et al. v New York City Health and Hospital Corporation, 90 NY2d 333 (1997)." [Affirmation by Jeane L. Strickland Smith, ¶8].

Defendant also argues both that the Notice of Intention was untimely, since it alleges a date of accrual of November 2000 at the earliest; and that the claim is untimely, since it alleges accrual dates between November 2000 and June 25, 2003, after the period alleged in the Notice of Intention.

A medical malpractice claim accrues on the date of the alleged wrongful act or omission. Nykorchuck v Henriques, 78 NY2d 255, 258 (1991); See Civil Practice Law and Rules §214-a. An exception to that general rule of accrual is provided by the continuous treatment doctrine, whereby the statute of limitations does not begin to run until the end of the course of treatment, so long as the treatment (or lack thereof) ". . . 'is related to the same original condition or complaint' (Borgia v City of New York, 12 NY2d 151, 155)." McDermott v Torre, 56 NY2d 399, 405 (1982).

With respect to the supposed lack of agency given Claimant's treatment at different correctional facilities by different medical providers, this is simply not supported by the factual showing made here through Claimant's Ambulatory Health Records (AHR). [See Exhibit F, Affirmation by Elmer Robert Keach,III, Attorney for Claimant]. As noted by Counsel for Claimant, it is well settled that ". . .where a prison inmate is treated (or necessary treatment omitted) by physicians in a succession of State facilities . . ." the continuous treatment doctrine may properly be applied. Jones v State of New York, Claim No. 100743, Motion No. M-65344, UIDNo. 2002-028-058 (Sise, J., October 21, 2002). ". . . [W]here treatment is provided by more than one physician or health care provider, the continuing treatment by one will be imputed to the other in the presence of an agency relationship, or some other relevant association which continues the nexus between the two providers . . . (citations omitted)." Ganapolskaya v V.I.P. Medical Associates, 221 AD2d 59, 62 (1st Dept 1996).

Additionally, Claimant sought treatment for the same symptoms over a one (1) year, to one and one-half (1 ½) year period, until he was referred to Albany Medical Center, tested, and [*3]diagnosed.

With respect to the efficacy of the Notice of Intention, then, Claimant benefits from the application of the continuous treatment doctrine at least until March 8, 2002 - when his medical condition was diagnosed - as was alleged in the Notice of Intention. The claim served and filed herein is timely at least with respect to allegations up to and including March 8, 2002.

Viewed as the "initiation of the legal process . . .", once the Notice of Intention was served on June 4, 2002, any continuous treatment toll ends, however, because the "continuing relationship of trust in the physician-patient relationship . . ." upon which the doctrine is premised, is severed. Toxey v State of New York, 279 AD2d 927, 929 (3d Dept 2001); see Allende v New York City Health & Hosps. Corp., 90 NY2d 333. Any acts or omissions complained of after June 4, 2002 cannot properly be a part of the claim, since the claim was not served and filed within ninety (90) days of accrual, and the Notice of Intention does not act as a toll for any subsequent acts or omissions. Indeed, Claimant concedes the point. [See Affirmation by Elmer Robert Keach, III, Attorney for Claimant, ¶11]. To that extent then, Defendant's motion to dismiss is granted with respect to any acts or omissions alleged in the Claim as occurring after June 4, 2002.

Defendant also asks the Court to dismiss the Claim based upon Claimant's purported failure to file a Certificate of Merit in conformance with Civil Practice Law and Rules §3012-a. That provision requires in pertinent part that the attorney for the [Claimant] in an action for medical malpractice provide a certificate to accompany the [claim] stating that

"(a)(1) . . . the attorney has reviewed the facts of the case and has consulted with at least one physician . . . who is licensed to practice in this state or any other state and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action; or (2) the attorney was unable to obtain the consultation required . . .because a limitation of time, established by article two of this chapter, would bar the action and that the certificate required . . . could not reasonably be obtained before such time expired. If a certificate is executed pursuant to this subdivision, the certificate required by this section shall be filed within ninety days after service of the complaint; or . . . (d) If a request by the plaintiff for the records of the plaintiff's medical . . . treatment by the defendants has been made and such records have not been produced, the plaintiff shall not be required to serve the certificate required . . . until ninety days after such records have been produced . . . " [*4]The Claim - prepared, served and filed by Claimant's counsel - indicates that a Certificate of Merit regarding the medical malpractice claims would be filed within ninety (90) days, but does not specify any reasons why the certificate is not provided. Thereafter, a Certificate of Merit was filed on May 28, 2004, well within the promised time period. As noted by Counsel for Claimant, dismissal of a claim based upon a failure to comply with the Certificate of Merit requirement is not an appropriate sanction. See Bowles v State of New York, 208 AD2d 440, 443 (1st Dept 1994); Kolb v Strogh, 158 AD2d 15 (2d Dept 1990). Instead, setting a time limit within which the Claimant must comply with the statutory requirement, or else face dismissal, is more appropriate. [Id]. In any event, a Certificate of Merit has been filed in this claim rendering the issue moot.

Finally, Defendant seeks dismissal of the Claim based upon a lack of compliance with Court of Claims Act §11(b), concerning the contents of a claim. Defendant alleges that there is a lack of specificity as to the dates on which Claimant was seen by medical personnel, and ". . . the nature of the conduct involving each medical provider which would give rise to a claim for medical malpractice." [Affirmation by Jeane L. Strickland Smith, ¶4].

Court of Claims Act §11(b) provides in pertinent part that ". . . [t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed . . . " Rules contain further requirements. See 22 NYCRR §206.6.

In this case, a time period - albeit a somewhat broad one - for various alleged wrongs is set forth in both the Notice of Intention and the Claim itself. In order to set forth a cause of action for malpractice, particularly when it is an alleged failure to act that is at issue, the Court is persuaded that at least for these preliminary purposes the Claim suffices despite the broad time frame, since a continuing wrong is alleged.

Notably, the purpose of the Notice of Intention is to put the Defendant State on notice of potential suit against it, so that it may investigate the claim and infer a theory of liability. It also acts to extend the period within which a Claim must be served and filed, provided it has been properly served and contains the required information. While it need not be scrutinized with the same attention as a pleading, it should nonetheless perform its notice function, as well as provide specific enough information to determine whether any subsequently served and filed Claim is timely filed. The Notice of Intention served here performed that function, and the Claim itself can survive this motion to dismiss.

Accordingly, Defendant's motion number M-68506 to dismiss the claim is granted in part as to any allegations beyond June 4, 2002, and denied with respect to the remaining arguments.

CROSS-MOTION FOR LATE CLAIM RELIEF

Claimant's cross-motion number CM-68967 is denied as moot, and otherwise denied based upon the Claimant's concession that no acts or omission beyond June 4, 2002 are alleged herein.