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On 23 January 1985, plaintiff was born by caesarean section


On 23 January 1985, plaintiff was born by caesarean section at North Central Bronx Hospital, an affiliate hospital of defendant HHC. The infant plaintiff’s parents are citizens of Guyana and the mother has had intermittent residence in the Bronx. Apparently, the caesarean section was necessitated by fetal distress arising from the umbilical cord being wrapped around his neck. Upon delivery, there was evidence of meconium and he received low Apgar scores. Hospital records indicate that he had suffered birth injuries such as birth asphyxia, meconium respiration and additional ailments (birth injury accidents). Plaintiff was discharged on 28 January 1985. Discharge memoranda indicate follow-up appointments and a referral to the Visiting Nursing Services. There is some evidence that the mother was provided with a set of appointment papers for a follow-up clinic appointment, but the mother states that she received no instructions after discharge. She recalls that a nurse visited once a week for six weeks, but she is not sure what the visits were for. Apparently she was given an appointment for a follow-up examination at the Kennedy Center, but she did not keep her appointment. The mother returned to Guyana with plaintiff in March 1985. There, she took him to a clinic for a six-week checkup, but otherwise sought no medical examinations.

At some point, she received a letter from North Central Bronx Hospital advising her that plaintiff should have a blood test. As a result, she returned with plaintiff to a Bronx clinic in September 1985. She did not recall the reason for the blood test, but recalled that the outcome was “OK.” Plaintiff notes that the clinic’s lab slip referencing the18 September 1985 blood test identified North Central Bronx as his hospital. Defendant argues that the clinic was not at North Central Bronx, though plaintiff tries to connect the two entities by noting that the clinic identified plaintiff by use of plaintiff’s North Central Bronx chart number. In any event, the mother subsequently took plaintiff back to Guyana. While in Guyana, the mother took him to a clinic to get vaccinations, and occasionally for colds, and at one point a doctor there indicated that plaintiff had a damaged hand, but no further treatment was ever given, and no further references were made.

Around 1986, plaintiff’s mother began to notice that plaintiff had difficulties with his left hand and arm, that he could not hold things and had general clumsiness when trying to hold things. She also observed at some point that he had difficulty with his left leg. She did not have this treated in Guyana; instead, she returned to the United States. Upon her request, she was scheduled for an appointment at North Central Bronx Hospital’s Well Baby Clinic on 12 August 1987. This was some 2½ years after plaintiff was discharged following his birth. In the interim, the mother had had no interaction with defendant hospital as to the medical conditions relating to the child’s birth. During that appointment, several diagnostic evaluations were made in connection with probable cerebral palsy, and a pediatric rehabilitation consultation was requested. The mother was scheduled for a 13 November 1987 appointment, and then a 29 January 1988 appointment, but she failed to appear at either appointment. She and plaintiff also failed to appear for a scheduled 7 October 1987 appointment for a rehabilitation and speech language pathology consultation. On 10 November 1987, she and plaintiff also failed to appear for a clinic appointment. She subsequently explained that during this time period, she had returned to Guyana where plaintiff was seen by a doctor who indicated that plaintiff had a damaged hand.

On July 11 and 21 July 1988, plaintiff and his mother returned to the United States where plaintiff was examined by the Rehabilitation Medicine Department at North Central Bronx Hospital and was sent for an evaluation. 23 On August 1988, he was given immunization shots and underwent a pediatric neurology evaluation, and was seen at the hospital in Brooklyn by a neurologist on 9 September 1988. During these examinations, developmental delays, speech delays, left-sided weaknesses and problems with coordination were noted. He was seen again at the North Central Bronx Hospital Clinic on 25 October 1988, at which time additional appointments were made for speech. The neurology record indicated that “care of child has been very fragmented because Mom moving back and forth to Guyana between New York and there,” and also noted that she would be returning to Guyana again in December 1988, and expected to return to New York in March 1989.

Several visits were scheduled, and several of which were missed by the plaintiff and his mother.

The records evince three general groupings of treatment: appointments and treatment at the time of the birth and relating directly to the birth; a subsequent succession of visits, with many appointments not kept by plaintiff and his mother, relating to cerebral palsy; and the latest groupings of visits that are more in the nature of the usual spate of routine pediatric visits.

On or about 20 November 1990, plaintiff commenced this action for medical malpractice by service of a summons and complaint on defendant-appellant HHC. The complaint alleged that the injuries occurred “during the pregnancy, labor, delivery and perinatal periods.”

On 18 October 1990, a notice of claim was filed. The filing of the notice of claim was not done under a grant of leave. Notably, the pleadings and notice of claim did not reference alleged malpractice occurring during courses of treatment subsequent to the birth and its immediate aftermath.

The summons and complaint were served and filed, and the notice of claim was filed, approximately 5½ years after the incidence of malpractice.

The malpractice statute of limitations is 2½ years from the act of malpractice or “last treatment where there is continuous treatment for the same condition. The term `continuous treatment’ shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient’s condition”. However, CPLR (Civil Practice Law and Rules) provides for a ten-year toll on the statute of limitations for infancy, so that for purposes of the statute of limitations, we need not digress to examine whether treatment was continuous to within 2½ years of the filing of the summons and complaint.

Does the continuous treatment doctrine apply so as to make timely the filing of a notice of claim under General Municipal Law during the tolling period for infancy for the statute of limitations, when the limitations period had lapsed, and leave to file a late notice of claim was never requested?

General Municipal Law (GML) requires that a notice of claim in a tort action against a public corporation must be served within 90 days after the claim arises. A court in its discretion, and upon application by the plaintiff, may extend the time to do so. GML imposes a one year and 90 day outside margin, running from the date of the event giving rise to the action. An additional restriction on the court’s grant of leave is imposed by GML, in that the extension may not exceed the time limit for the commencement of the action against the public corporation.

Logically, for such a leave request made during the tolling period for the statute of limitations, the court’s exercise of discretion is circumscribed by the clear legal mandate that if leave is granted, the late filing of the notice of claim still must be accomplished within the statute of limitations period, as extended by the tolling provisions. However, in the present case, an application was not even made to file a late notice of claim by the time the statute of limitations had run, if we deem the limitations period to have commenced at the time of the injury, i.e., birth. If the application for leave is not made prior to the running of the statute of limitations, it may not thereafter be granted. In this case, although the notice of claim was filed some five-and-a-half years after birth, the filing was not pursuant to a grant of leave. This was untimely.

However, the continuous treatment doctrine has also been applied to the GML filing deadline. Hence, if the treatment related to the alleged injury continues beyond the original event that caused the injury, the filing requirement is also tolled during that time period. As a practical matter, this means that as long as the notice of claim is filed within 90 days after the conclusion of that continuing treatment, it is timely, and no request for leave is necessary for the filing to be valid.

It must be noted that the birth injuries being alleged arose at North Central Bronx Hospital and plaintiff sued HHC and alleged continuous treatment by virtue of post-birth treatment at North Central’s Pediatric Rehabilitation Medicine Clinic for his Erb’s Palsy and at North Central’s Pediatric Clinic for routine health care. The infant plaintiff and his mother had relocated to Florida after the child’s birth. The clinic advised the mother to seek medical attention in Florida and indicated that it would forward the medical records upon request. The Court of Appeals noted that both parties in that case understood that North Central’s treatment would not continue once plaintiff relocated to Florida. Subsequently, the child was treated again at North Central after moving back to New York for various routine matters and also for a speech evaluation, though the plaintiff and his mother missed some scheduled appointments.

The Court finds that the move to Florida broke the continuity of the treatment and rejected the mother’s assertion that she had intended that the child still be treated at North Central even after they moved to Florida. Moreover, routine treatments unrelated to the injury that gave rise to the action did not extend the treatment for GML purposes. A landmark case held that the treatment must be for the injury giving rise to the claim, that the future treatments must be explicitly anticipated by both physician and patient, which must be manifested in the form of a regularly scheduled future appointment, agreed upon during the last visit, in conformance with the periodic appointments that had characterized treatment for that injury in the immediate past, and that the next scheduled appointment must be intended as part of the ongoing corrective action. Hence, there was no continuous treatment in the present case up to within 90 days of the date when the notice of claim was filed.

Even if the hospital expected the patient to return for follow-up treatments, in order for the continuous treatment doctrine to apply, the plaintiff-patient also must intend to do so in connection with the injury for which treatment was being sought. The physician and patient must reasonably intend “the patient’s uninterrupted reliance upon the physician’s observation, directions, concern, and responsibility for overseeing the patient’s progress.” The continuing treatment must be pursuant to the course of treatment established with respect to the condition that gave rise to the lawsuit. A mere continuing diagnosis by the same physician or hospital is insufficient to establish the doctrine. The fact remains that the plaintiff and his mother relocated back to Guyana and pursued medical treatment, even if it was inadequate medical treatment, in that country and the mother’s allegations that she generally expected North Central Bronx Hospital – a half a world away – to remain the treating medical entity, does not satisfy the clear requirement that both parties must actively manifest such an intent. The discharge records even indicate that the mother was referred to another medical entity for follow-up treatment, and even then she missed appointments.

Moreover, a succession of missed appointments, in any event, may also serve to sever the continuity of treatment. Hence, even if these facts allowed for a continuation of treatment beyond August 1987, the mother’s failure to continue with scheduled appointments, coupled with her continual relocation outside the country. Several of these visits were merely diagnostic rather than constituting ongoing treatment. In addition, the visits to the clinic in 1989 and 1990 seem prompted by routine pediatric care rather than being related to the birth defects, and so that would clearly constitute different, rather than continuing, treatment.

Hence, insofar as treatment did not continue within 90 days of the service of the notice of claim, and no timely request for leave to file a late notice of claim was made, the claim is barred.

A medical malpractice resulting to birth injury accidents is very frightening especially to the parents of the children born. A medical malpractice does not only result to physical pain but extreme emotional pain that no one can ever imagine. If you are a victim of a medical malpractice or you know someone who is, you can get compensated. Contact Stephen Bilkis & Associates to know more about your legal options and hire one of our New York City Medical Malpractice Attorneys or our New York City Birth Injury Attorneys.

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