Smith v Cooper

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Smith v Cooper 2018 NY Slip Op 34120(U) January 11, 2018 Supreme Court, Westchester County Docket Number: Index No. 56422/2017 Judge: William J. Giacomo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 01/12/2018 02:10 PM NYSCEF DOC. NO. 53 INDEX NO. 56422/2017 RECEIVED NYSCEF: 01/12/2018 To .commence commence the statutory statutory time time period appeals as of of right period for for appeals right advised (CPLR 5513 [a]), you you are advised to ~erve a copy copy of order, with with of this this order, notice of upon all parties. parties. notice of entry, entry, upon - - - -- -- -- -- -- -- -- -- - SUPREME COURT OF THE STATE NEW YORK SUPREME COURT STATE OF NEW YORK COUNTY COUNTY OF WESTCHESTER WESTCHESTER PRESENT: HON. WILLIAM GIACOMO, J.S.C. J.S.C. PRESENT: WILLIAM J. GIACOMO, - - --- - ---- - - - ----- - - - - - --- - - ----- - -- - --- - - ---- - - - X -- JACK SMITH SMITH and MARILYN MARILYN SMITH, SMITH, JACK Plaintiffs, Plaintiffs, - againstagainst- Index No. 56422/2017 56422/2017 Index HOWARD A. COOPER, COOPER, M.D., and WESTCHESTER HOWARD WESTCHESTER MEDICAL CENTER, CENTER, MEDICAL Defendants. Defendants. -- - ---- - -- - -- -- -..-- - ---- -- - ---- ----- - - - - --- - - ---- - --- - - -- -- --- - - -----x - - - DECISION & ORDER ORDER DECISION X action to recover recover damages medical malpractice, malpractice, the defendant In an act~on damages for for medical defendant Westchester Medical Medical Center Center moves moves to dismiss complaint, pursuant pursuant CPLR CPLR 3211 or for for Westchester dismiss the complaint, summary judgment, pursuant to CPLR CPLR 3212, on the ground that plaintiffs plaintiffs failed failed to timely timely ~umma~ judgme~t, pursuant ground that notice of claim claim pursuant pursuant to General General Municipal Municipal Law 50-d & 50-e: file a notice Papers Considered Considered Papers 1. Notice of Motion/Affirmation Notice of Motion/Affirmation of Thomas Thomas M. Grove Grove Esq./Exhibits Esq./Exhibits A-G; 2. Affirmation Opposition of Jay A. A. Wechsler, Wechsler, Esq./Exhibits Esq./Exhibits A-E; Affirmation in Opposition of Jay Reply Affirmation Thomas M. Grove, Grove, Esq./Exhibits Esq./Exhibits H-K. 3. Reply Affirmation of Thomas Factual and and Procedural Procedural Background Background Factual Plaintiffs commenced commenced this action action against against Howard Howard A. Cooper, M.D. and Plaintiffs A. Cooper, Westchester Medical Center Center ("WMC") ("WMC") for medical medical malpractice, malpractice, lack of informed consent, consent, Westchester Medical of informed and loss of consortium, of a summons 2017. consortium, with the filing of summons and complalnt complaint on April 28, 2017. The complaint complaint alleges alleges that October 30, 2015, while plaintiff plaintiff Jack Smith was a The that on October 2015, while Jack Smith patient at WMC, underwent the pericardial effusion pericardiocentesis patient WMC, he underwent the draining draining of a pericardia! effusion by pericardiocentesis during which heart was punctured punctured requiring requiring an emergency emergency sternotomy sternotomy and repair repair of during which his heart the right right ventricle ventricle on October 31, 31,2015. the on October 2015. Plaintiffs served notice of claim upon WMC January 12, 2017. 2017. The notice of Plaintiffs served a notice WMC on January The notice claim asserts that nature of the claim for personal personal injuries injuries as a result result of the medical medical claim asserts that the nature claim is for malpractice and negligence in performing a pericardiocentesis for removal of a pericardial removal of pericardia! malpractice and negligence performing pericardiocentesis effusion at WMC. The incident, incident, which which gives gives rise to the cause cause of action, action, occurred occurred on effusion WMC. The 1 of 4 [*FILED: 2] WESTCHESTER COUNTY CLERK 01/12/2018 02:10 PM NYSCEF DOC. NO. 53 INDEX NO. 56422/2017 RECEIVED NYSCEF: 01/12/2018 Smith 5mith v. Cooper, Cooper, M.D., M.D., Index Index No. 56422/2017 56422/2017 October WMC, when October 30, 2015, at WMC, when the plaintiff plaintiff was undergoing undergoing a pericadiocentesis pericadiocentesis and heart was punctured requiring requiring an emergency emergency sternotomy sternotomy and repair repair of the right his heart was punctured ventricle. The The notice notice of of claim claim alleges alleges that injured plaintiff plaintiff had continuous continuous treatment ventricle. that the injured treatment at WMC from the date date of the incident incident to the present. present. The damages damages claimed claimed include include injuries injuries WMC related to the puncture puncture of of the heart, the sternotomy sternotomy and repair, repair, which otherwise would related which otherwise would not have have been necessary, necessary, severe severe and protracted protracted pain, and extended extended delay delay of a kidney kidney transplant resulting transplant resulting in continued continued dialysis. dialysis. WMC moves 3211, or for summary WMC moves to dismiss dismiss the complaint, complaint, pursuant pursuant to CPLR CPLR 3211, summary judgment, pursuant to CPLR CPLR 3212, on the ground ground that plaintiffs failed notice judgment, pursuant that plaintiffs failed to file a timely timely notice claim pursuant pursuant to General General Municipal Municipal Law 50-d and 50-e. of claim WMC argues that rendered to plaintiff plaintiff from WMC argues that treatment treatment was rendered from October October 30, 2015, 2015, through November 6, 2015. 2015. Specifically, Specifically, the pericardiocentesis pericardiocentesis was performed on through November was performed October 30, 2015, sternotomy was performed performed on October October 31, 2015, plaintiff October 2015, the the sternotomy 2015, and the the plaintiff was discharged discharged on November November 6, 2015. The notice of claim was was The notice was not served served until January January which is 343 days expiration of the ninety-day 12, 2017, without 12,2017, without leave leave of court, which days after after the expiration ninety-day (90) time time period WMC argues that the one year year and period to file a notice notice of claim. Moreover, Moreover, WMC argues that ninety-day (90) statute statute of of limitations limitations expired expired on February February 4, 2017 prior to the 2017 prior ninety-day commencement commencement of this action. action. WMC further argues that continuous treatment doctrine is not applicable applicable WMC further argues that the continuous treatment doctrine because the malpractice malpractice claims claims involve involve cardiac cardiac care and the subsequent because subsequent treatment treatment sought plaintiff was for a kidney kidney transplant. However, even even if the continuous continuous treatment sought by plaintiff transplant. However, treatment doctrine applies, applies, WMC WMC argues argues that that the notice notice of of claim claim is still untimely. Plaintiff's cardiac cardiac doctrine untimely. Plaintiff's related treatment at the Kidney related treatment Kidney Transplant Transplant Center Center occurred occurred on December December 16, 2015, March 3, 2016, March 16, 16,2016, after which there was 2016, and and March 2016, after which there was no further further cardiac cardiac treatment. treatment. March WMC argues that plaintiff's treatment treatment after after March 16, 16,2016, unrelated to any any course WMC argues that plaintiff's 2016, was was unrelated course respect to the condition condition that gave rise to the lawsuit. Thus, of treatment treatment with respect that gave the lawsuit. Thus, even if the continuous treatment treatment doctrine doctrine applies, applies, the plaintiffs plaintiffs would have had to file a notice notice of continuous would have June 14, 2016, or were required to make make a motion motion to serve notice of claim claim by June were required serve a late notice June 14, 2017, 2017, which which they by June they failed failed to do. opposition, plaintiff plaintiff argues argues that continuous treatment applicable In opposition, that the continuous treatment doctrine doctrine is applicable to toll the notice that the injured was a kidney notice of claim requirement. requirement. Plaintiffs Plaintiffs argue argue that injured plaintiff plaintiff was kidney patient treatment. Plaintiffs argue patient whose whose cardiac cardiac treatment treatment was incidental incidental to his kidney kidney treatment. Plaintiffs argue that when when the injured injured plaintiff plaintiff presented presented to WMC October 30, 2015, that WMC on October 2015, it was was part part of a work-up for an upcoming upcoming kidney kidney transplant. chest x-ray revealed fluid work-up transplant. At that time, time, a chest x-ray revealed around his heart heart requiring requiring a pericardiocentisis pericardiocentisis to drain drain the fluid. Plaintiffs Plaintiffs argue argue that around that the pericardiocentisis was negligently negligently performed, performed, which resulted in the for an the need for pericardlocentisis which resulted emergency sternotomy. sternotomy. As a result, result, plaintiffs plaintiffs claim that plaintiff lost the emergency that the injured fnjured plaintiff the opportunity for a donor donor kidney, kidney, had to wait wait over over a year year and a half half for transplant, and opportunity for the the transplant, was unnecessary and lengthy lengthy dialysis. Plaintiffs argue follow-up was subjected subjected to unnecessary dialysis. Plaintiffs argue that that the the follow-up treatment center occurred occurred as recently recently as April April 27, 2017, 2017, where treatment was was at WMC's WMC's transplant transplant center where plaintiff Jack Jack Smith Smith was was evaluated evaluated for kidney transplant. transplant. Thus, plaintiffs argue argue that plaintiff for a kidney Thus, plaintiffs that the the 22 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 01/12/2018 02:10 PM NYSCEF DOC. NO. 53 INDEX NO. 56422/2017 RECEIVED NYSCEF: 01/12/2018 Smith v. Cooper, Cooper, M.D., M.D., Index Index No. 56422/2017 Smith 56422/2017 Discussion Discussion A notice notice of claim against against a municipal municipal corporation must be served served within corporation must within 90 days days of time the claim claim arises arises (General (General Municipal Municipal Law § ~ 50-e 50-e [1]; Allende the time Allende v New New York City Health action accrues Health & Hasps. Hosps. Corp., 90 NY2d 333 [1997)). A medical medical malpractice malpractice action accrues on the date when original negligent negligent act or omission New when the alleged alleged original omission occurred occurred (see Young v New City Health Health & Hasps. Hasps. Corp., 91 York City 91 NY2d 291 [1998)). doctrine of continuous however, may may toll the 90-day 90-day period period within The doctrine continuous treatment, treatment, however, within which notice of claim must must be filed under under GML GML ~ Davis v City City of New York, which a notice § 50-e (see Davis of New 38 NY2d 257, 259 [1975]). applies when when continuous treatment is sought [1975)). The toll applies continuous treatment sought "for "for the same which gave gave rise to the said act, omission failure" same illness, illness, injury injury or condition condition which omission or failure" originally complained complained of (CPLR (CPLR 214-a; Plummer v N. Y. Y. City City Health Health & Hasps. originally 214-a; Plummer Hasps. Corp., 98 [2002]; McDermott [1982)). Essential Essential to the NY2d 263 [2002]; McDermott v Torre, 56 NY2d 399, 407 407 [1982]). application of the continuous continuous treatment doctrine is "a course application treatment doctrine course of treatment treatment established established with respect to the condition condition that gives rise to the lawsuit" lawsuit" (Nykorchuck (Nykorchuck v Henriques, respect that gives Henriques, 78 NY2d 258-259 [1991 [1991)). "Routine examination seemingly healthy healthy patient, patient, or visits 255, 258-259 ]). "Routine examination of a seemingly visits concerning giving rise to the claim, are concerning matters matters unrelated unrelated to the condition condition at issue issue giving insufficient Health & Hasps. insufficient to invoke invoke the benefit benefit of the doctrine" doctrine" (Plummer (Plummer v N. Y. Y. City City Health Corp., 98 NY2d at 268). defendants demonstrated demonstrated that cardiac related related treatment occurred Here, defendants that no further further cardiac treatment occurred after March March 16, 2016. The medical medical records records from after from WMC WMC demonstrate demonstrate that that the pericardiocentesis was performed on October sternotomy was pericardiocentesis was performed October 30, 2015, 2015, and the sternotomy performed on October October 31, 2015. Plaintiff was November 6, 2015. performed 2015. Plaintiff was discharged discharged on November Thereafter, Transplant Center 2015, Thereafter, plaintiff plaintiff presented presented at the Kidney Kidney Transplant Center on December December 16, 2015, 2016, plaintiff transplant center for a postsurgical postsurgical follow follow up. On March March 3, 2016, plaintiff presented presented at the transplant center for pericardia! pericardial effusion effusion in furtherance preoperative cardiovascular furtherance of his preoperative cardiovascular examination. examination. An echocardiogram was reassess the pericardia! pericardial effusion. The echocardiography echocardiogram was ordered ordered to reassess effusion. The echocardiography was performed performed on March March 16, 2016. Through medical records, records, Through the submission submission of medical defendants demonstrated demonstrated that subsequent cardiac cardiac treatment after March March 16, 16,2016, defendants that any subsequent treatment after 2016, was plaintiff's "pre-transplant "pre-transplant evaluation evaluation for end stage stage renal disease". was in furtherance furtherance of plaintiff's disease". opposition, plaintiffs plaintiffs failed issue of fact. Plaintiffs' Plaintiffs' argument In opposition, failed to raise a triable triable issue offact. argument that evaluation of plaintiff plaintiff Jack Jack Smith Smith on April the evaluation April 27, 2017, at WMC's WMC's transplant transplant center center for for a kidney transplant transplant fails kidney fails to establish establish continuous continuous treatment. treatment. continuous treatment doctrine tolled limitations until March March Here, the continuous treatment doctrine tolled the statute statute of !imitations 2016. Therefore, Therefore, plaintiffs plaintiffs were were required required to file a notice notice of claim claim within days of that that 16, 2016. within 90 days June 14, 2016. 2016. Plaintiffs' Plaintiffs' service service of of a late notice notice of claim on January January 12, 2017, 2017, date, or June without leave leave of court court is a nullity nullity (see Maxwell Maxwell v City of of New New York, 29 AD3d without AD3d 540 [2d Dept 2006]; Santiago Santiago v City City of of New New York, 294 AD2d Dept 2002]). 2002)). Moreover, Moreover, plaintiffs plaintiffs 2006]; AD2d 483 483 [2d Dept failed seek leave leave of court court to file a late notice notice of claim claim within one year year and ninety ninety days days failed to seek within one after accrual accrual of of the claim (see General General Municipal Municipal Law§ Law ~ 50-1; 50-I; CPLR CPLR 217-a; 217-a; see Daniel Daniel J. after the claim --. 3 I 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 01/12/2018 02:10 PM NYSCEF DOC. NO. 53 INDEX NO. 56422/2017 RECEIVED NYSCEF: 01/12/2018 Smith v. Cooper, M.D., Index Index No. 56422/2017 56422/2017 Smith Cooper, M.D., New York City City Health Hasps. Corp., 77 77 NY2d NY2d 630 630 [1991 [1991];]; Maxwell City of of New New York, v New Health & Hasps. Maxwell v City 29 AD3d AD3d 540). Accordingly, WMC's dismiss the complaint complaint pursuant General Accordingly, WMC's motion motion to dismiss pursuant to General Municipal Municipal Law 50-d and 50-e, and CPLR CPLR 3211 and 3212, for failure notice failure to file a timely timely notice GRANTED. of claim is GRANTED. -~ Dated: Dated: White Plains, New New York York White Plains, January 11, 2018 January 2018 LLiAM J. GIACOMO, J.S.C H: ALPHABETICAL ALPHABETICAL MASTER MASTER LIST LIST - WESTCHESTER/Smith Cooper WESTCHESTER/Smith v. Cooper 4 __ ..._, :....:_- 4 of 4

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