This is a medical malpractice case filed against the defendant NYC hospital because of the negligence committed by its employees during plaintiff’s birth in September 1993. According to the hospital records, the medical employees in attendance gave his mother Pitocin, a drug used to facilitate the birth. The delivery involved two attempts at vacuum extraction and, ultimately, the use of forceps. Records show that the mother’s pelvis was adequate to accommodate the baby’s head and the birth was without complication. The infant weighed 8 pounds, 3½ ounces. His Apgar score was within satisfactory range: eight at one minute after birth and nine at five minutes after birth. The records also reveal that there were marks on his forehead from the forceps and his clavicle was broken. Because of the foregoing, plaintiff is presently suffering from epilepsy and developmental disabilities.
The record reveals that in 1995 plaintiff had an electroencephalogram (EEG), a test to trace his brain waves. The results were normal, but EEGs in 1998 and 1999 showed signs of abnormality. On September 5, 2003, 10 years after plaintiff’s birth, his counsel sent defendant hospital a notice of claim alleging, in essence, that plaintiff suffered brain injury resulting from the hospital’s malpractice during his delivery.
In support of his motion for late service of a notice of claim, plaintiff argued that section 50-e (5) contemplates “actual knowledge of the essential facts constituting the claim,” not knowledge of a specific legal theory, and because defendant hospital is in possession of the medical records, they necessarily have actual knowledge of the facts constituting the claim. Plaintiff further argued that the delay in the service of claim was a product of his infancy.