On 8 April 2005, the subject infant was born at a hospital. Allegedly, the infant sustained meconium aspiration syndrome and hypertonia as a result of the hospital’s mismanagement of the labor and delivery. Though the infant was transferred to another hospital on 9 April 2005 for almost two weeks, he was transferred back where he remained until 24 May 2005. Thereafter, he was treated at the same Hospital through 2006.
A claim for medical malpractice against the New York City Health and Hospitals Corporation thereafter ensued brought by the infant’s mother, individually and on behalf of her son, the subject infant. It is alleged that the infant suffers from brain injury and severe developmental delays.
In the case at bar, the court lacks jurisdiction to grant leave to file a late notice of claim as to the mother’s individual claims because her application is made more than one year and ninety days from the accrual of the action. As to the infant’s claims, based on the dates of the alleged malpractice, a notice of claim should have been served on respondent by 7 June 2005; however, the infant is the beneficiary of a CPLR infancy toll. Hence, the court may consider the application pursuant to General Municipal Law.
Under the rules, in determining whether to allow a late filing in Sufffolk or Westchester, the court must consider various factors: whether the petitioner has demonstrated a reasonable excuse for failing to serve a timely notice of claim, whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or reasonable time thereafter, and whether the delay would substantially prejudice the public corporation in defending on the merits.
Here, although the infant had a complicated course in the hospital following delivery, a difficult hospital course, as evidenced by entries in the Hospital’s records at the time of the petitioner’s birth, does not, standing alone, provide notice of the facts underlying a malpractice claim. Besides, entries in the medical records reveal that the infant was developing normally at the time of discharge and there was no indication of a long term injury. In fact, in the supporting affidavit of the infant’s mother, she admits to being aware of such conclusion by noting that at the age of three months her son had met all developmental milestones. Moreover, a note of a 20 July 2006 neurology visit supports such conclusion. Furthermore, sometime in October of 2006, the infant’s mother also stated that, at about 17 months post-delivery, her son had once again met all milestones. The infant’s mother stated that she did not learn of her son’s alleged delays until some point thereafter and that it was not until 2008 that more findings led her to believe that her son’s damages were in fact related to his birthing process. Evidently, the respondent could not have been aware of any birth injury attributable to the delivery within 90 days of the date of accrual, or a reasonable time thereafter, as there was no indication that the infant suffered any alleged delays until later. Hence, the subject medical records alone, on their face, do not evince that respondent, by its acts or omissions, inflicted injuries on the infant and that respondent should have been aware of the same within the applicable 90 days, or a reasonable time thereafter.
In addition, the mother’s excuse for not being aware that her son’s problems could have been caused by malpractice was that she only has a high school education and was 23 years old at the time of her son’s birth is bereft of merit. Ignorance of the law requiring that a notice of claim be filed is not an acceptable excuse.
What’s more, there is no support for the assertion that the delay was the product of infancy or of the need to provide the infant with extraordinary care. Petitioner has failed to offer a reasonable excuse for the delay in filing the notice of claim.
In sum, the petitioners failed to offer the necessary nexus between the act of the respondent and any injury to petitioner that would put the hospital on notice that a claim would be filed with regard to the delivery at issue. The mere assertion that because the infant suffered a difficult neonatal course puts the respondent on notice of a malpractice claim is rejected. To prevail on the application, petitioner must establish that respondent had notice that the hospital departed from the standard of care in treating the infant, and that those departures caused the infant’s injuries. Here, petitioner has not established these elements; hence, the application is denied. The petitioners’ application, by Order to Show Cause, for an order seeking leave to file a late notice of claim and setting an immediate date for an examination of the claimant pursuant to the General Municipal Law is denied.