Matter of Anderson v Westchester County Health Care Corp.
Annotate this CaseDecided on September 14, 2016
Supreme Court, Westchester County
In the Matter of the Application of Marylou Anderson, Plaintiff,
against
Westchester County Health Care Corporation d/b/a WESTCHESTER COUNTY MEDICAL CENTER, Defendant.
55144/16
Brand, Glick & Brand, P.C.
600 Old Country Road- Suite 440
Garden City, New York 11530
Attorneys for Plaintiff
Martin Clearwater & Bell, LP
245 Main Street
White Plains, New York 10601
Attorneys for Defendant
David F. Everett, J.
The following papers were read on the petition:
Order to Show Cause/Petition/Exhibits A-I
Aff in Opp/Exhibit A
Reply Aff/Exhibit A
Upon the forgoing papers, the motion is granted.
Petitioner MaryLou Anderson (Anderson) moves, by order to show cause, for an order granting her leave to serve a late notice of claim upon respondents Westchester County Health Care Corporation d/b/a Westchester County Medical Center (WCMC) in the proposed form annexed as exhibit A. The petition is opposed.
The following facts are taken from the petition, affidavits, documentary evidence and the record, and are undisputed unless otherwise indicated.
Commencing at approximately 9:00 a.m., on June 24, 2015, Anderson underwent a four to five hour long bariatric surgery under general anesthesia at WCMC. It is alleged that, due to [*2]medical malpractice occurring during the surgery, Anderson sustained severe and permanent injuries to her dominant right arm, including pain, numbness, loss of functioning and Reflex Sympathetic Dystrophy. She did not, however, serve a notice of claim within the statutory 90-day period, and now seeks leave to serve a late notice of claim.
Anderson argues in support of the instant petition that it should be granted because WCMC had actual notice of the injury during surgery, and documented both the injury and the steps taken to address the injury in its medical records. Given that WCMC had first hand knowledge of the potential claim as of the date it accrued, it cannot claim surprise or prejudice.
Anderson also supports her petition with copies of the WCMC charts and records related to her surgery and post-operative care and treatment (the records). The records reveals that Ashutosh Kaul, M.D. was her surgeon, John A. Cooley, M.D. (Dr. Cooley) was her anesthesiologist, and that, during the surgical procedure, Anderson's arms were secured to her sides, and an IV line was administered into her right arm. According to the records, prior to the end of surgery, at approximately 12:30 p.m., Dr. Cooley noted in her chart that: "Pt's arm found to be tense [with] purple color on R hand . . . Approx. 1.5 l of plasmalyte give thru PIV, clearly infiltrated. Hand surgery and vascular consults obtained" (notice of petition, exhibit B). The consultation report from vascular surgeon, Joseph Lopez, M.D. (Dr. Lopez), who was called in either during or immediately after surgery states, in relevant part:
"her right AC peripheral IC became infiltrated at some point in the case and the patient developed acute swelling of the right upper extremity with associated cyanosis which was discovered immediately after the case. Orthopedic surgery was called into the room to evaluate and Stryker needle was utilized to check compartment pressures of that extremity which were noted to be elevated at 70. Vascular surgery was consulted to evaluate as well"
(id. exhibit C).
A few hours after the surgery, WCMC called upon Neil Patel, M.D. (Dr. Patel) for an orthopedic consult. According to Dr. Patel's note in the record:
"[d]uring the procedure, her right PIV became infiltrated and patient developed acute swelling of the right upper extremity with associated cyanosis. Orthopedic surgery and vascular surgery was consulted intra-op for evaluation of compartment syndrome and possible R hand ischemia. Pt was intudated (sic) and sedated during this event" (id. exhibit D).
Anderson points to the note by WCMC medicine specialist, Priya Prakash, M.D., in which she documents Anderson's continued complaints of pain in her right arm subsequent to the surgery, and to the discharge summary dated June 29, 2015, which states, in relevant part:
"[t]he patient . . . went to the OR and underwent laparoscopic removal of lap band and laparoscopic conversion to sleeve gastrectomy under general anesthesia, along with the bilateral TAP block. The procedure itself was uneventful and when completed, it was noted that her peripheral IV had infiltrated. The following consults were called to address this matter; vascular surgery, orthopedics, and neurological evaluation was performed by the trauma ICU staff" (id. exhibits E, F).Anderson explains that, after she was discharged from WCMC, she consulted various specialists for the pain and loss of function in her right arm and hand. When it became clear that her arm was not improving, and that it was actually regressing, she finally consulted with an attorney, who immediately sought her WCMC records. Upon receipt and review of the records, [*3]and upon receipt of an opinion from the medical physician to whom counsel forwarded the WCMC records for review, Mark A. Lovich, M.D. (Dr. Lovich) (id. exhibit G), counsel submitted the instant petition for leave to serve a late notice of claim on WCMC based on allegations of medical malpractice. Central to the petition is Anderson's assertion that leave should be granted under section 50-e (5) of the General Municipal Law (GML), because WCMC's own records reveal that it had ample knowledge of the events underlying her medical malpractice action.
WCMC opposes the motion, arguing that Dr. Lovich's medical opinion was not submitted in proper evidentiary form, in that it is not accompanied by a certificate of conformity, as required under CPLR 2309 (c). More significantly, WCMC argues that Anderson has not met the criteria for extending her time to serve a late notice of claim, in that she: does not have a valid reason for failing to file the notice within 90 days, or no later than September 22, 2015; cannot show that WCMC had actual knowledge of the essential facts constituting the claim; and cannot demonstrate that WCMC is not prejudiced in maintaining a defense to the action due to the lack of timely filing. For the following reasons, the petition for leave to file a late notice of claim is granted.
First, WCMC's effort to obtain a denial of the petition on the basis of plaintiff's failure to submit Dr. Lovich's medical opinion in competent evidentiary form (CPLR 2309), was rendered moot when plaintiff cured the defect as part of her reply (reply aff, exhibit A).
Next, it is black letter law in New York that "[s]ervice of a notice of claim within 90 days after accrual of the claim is a condition precedent to the commencement of a tort action against a public corporation" (Cassidy v Riverhead Cent. Sch. Dist., 128 AD3d 996, 997 [2d Dept 2015]; GML § 50-e [1] [a]). The motion court, however, has the discretion to grant leave to serve a late notice of claim, or to deem a notice of claim timely served nunc pro tunc, so long as the application is made within one year and 90 days from the date on which the claim accrued (GML § 50-e [5]). Here, it is undisputed that Anderson's claim accrued on June 24, 2015, that she brought the instant petition within one year and 90 days from that date, and that the central issue before the Court is whether it is appropriate to grant Anderson's petition.
In making this determination:
"the court must consider all relevant facts and circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits" (Matter of Destine v City of New York, 111 AD3d 629, 629 [2d Dept 2013] [internal citations omitted]; GML § 50-e [5]).Additionally, "while the presence or absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance" (Matter of Iacone v Town of Hempstead, 82 AD3d 888, 888-889 [2d Dept 2011] [internal citations omitted]).
Here, Anderson explains that she failed to timely serve a notice of claim, not only because she did not know of the filing requirement, but because she was busy treating with various doctors and did not know that her arm would not adequately improve with treatment. [*4]This explanation is inadequate. Unlike matters in which petitioners sustained traumatic injuries requiring surgery and continuous hospitalization, such as Matter of Levin v County of Westchester (91 AD3d 646 [2d Dept 2012]) and Matter of Haeg v County of Suffolk (30 AD3d 519 [2d Dept 2006]), Anderson's frequent visits to medical providers, coupled with her lack of legal knowledge, is insufficient to demonstrate that her delay in service of a notice of claim was directly related to her medical condition (id.; GML § 50-e [5]).
However, Anderson's failure to provide an acceptable excuse is not fatal to her petition. Based on her submissions, Anderson has established that WCMC had actual knowledge of the essential facts constituting her medical malpractice claim within 90 days of her June 24, 2015 bariatric surgery. WCMC counsel's strident denials, and its assertions of inadequate information, its reference to a notation in Anderson's hospital chart to the effect that "right arm swelling has been improving" (notice of petition, exhibit B), and its claimed lack of direct knowledge of an impending suit, are unpersuasive under the instant facts, and unavailing.
It is well settled that "[a]ctual knowledge of the essential facts underlying the claim means knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the proposed notice of claim; the public corporation need not have specific notice of the theory or theories themselves" (Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d 790, 791 [2d Dept 2014] [internal quotation marks and citations omitted]). The notations in WCMC's own records unequivocally demonstrate that, an unexpected complication involving the IV line and infiltration of Anderson's right arm occurred during surgery, and that the complication was significant enough to cause immediate concern and intervention by the WCMC medical personnel during and after surgery. For the purpose of this application, the records sufficiently relate the infiltration of the IV line with the injury resulting to Anderson's right arm and hand. There is little question that, "one could readily infer from [the medical records] that a potentially actionable wrong had been committed by the public corporation" (Kuterman v City of New York, 121 AD3d 646 [2d Dept 2014]).
There is also no merit to WCMC's claim that it has been prejudiced by the delay in serving the notice of claim, because Dr. Lopez has since taken another position out of state. WCMC's claim of unavailability is unsupported by competent evidence showing that Dr. Lopez cannot be reached, and/or is unwilling to assist WCMC in its investigation or defense of the matter. WCMC also provides no explanation as to the manner in which Dr. Lopez's possible lack of his participation has prejudiced, or is likely to cause material and irreparable prejudice to WCMC in its investigation and defense of plaintiff's action. By establishing that WCMC had adequate knowledge of the essential facts underlying her medical malpractice claim within 90 days of accrual, and because most, if not all, of the medical personnel and staff involved in the surgery, and in the care and treatment of Anderson's right arm and hand, are still affiliated with WCMC, there is no basis from which prejudice can be inferred.
In the Court's discretion, it is appropriate to grant Anderson leave to serve a late notice of claim.
Accordingly, it is
ADJUDGED that petitioner MaryLou Anderson's application for leave to serve a late notice of claim upon respondent Westchester County Health Care Corporation d/b/a Westchester County Medical Center is granted and the notice of claim in the proposed form annexed to the [*5]petition papers shall be deemed served upon service of a copy of this decision and order with notice of entry thereof; and it is further
ADJUDGED that within 15 days of the date of service of this decision and order with notice of entry, respondent may notice a hearing pursuant to GML § 50-h to be held on a date within 30 days thereof and petitioner shall submit to such examination; and it is further
ADJUDGED that petitioner MaryLou Anderson shall commence an action and purchase a new index number in the event a lawsuit arising from the notice of claim, is filed.
This constitutes the decision and judgment of the Court.
Dated: White Plains, New York
September 14, 2016
Enter:
HON. David F. Everett, A.J.S.C.
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