On 14 August 1989, the infant plaintiff was born at a Hospital and has suffered from a birth injury, that is, a brain injury called cerebral palsy. On 11 February 2004, plaintiffs filed a Notice of Claim and commenced the instant action on 18 March 2004. The plaintiffs allege that defendant departed from good and accepted medical practice between April 1989 through 14 August1989, viz: in its monitoring and treatment of infant plaintiff’s mother’s obstetric care, including running tests and taking a proper history; in failing to implement proper obstetric protocols and procedures; and in failing to implement proper protocols and procedures to ensure adequate obstetric training of its medical personnel.
The defendant, New York City Health and Hospitals Corporation, moved for an order dismissing plaintiffs’ complaint as untimely pursuant to NY Unconsolidated Law and the General Municipal Law. Defendant argues that plaintiffs’ claims are time-barred due to plaintiffs’ failure to file a Notice of Claim within 90 days and commence an action within one year and 90 days; that the action is one for medical malpractice based upon defendant’s alleged negligence in monitoring and treating plaintiff, but plaintiffs are trying to circumvent the statute of limitations by categorizing the current action as ordinary negligence.
In opposition, plaintiffs insist that the current action is for ordinary negligence, not for medical malpractice, and therefore, the infancy toll provided the rules allow plaintiffs to proceed with their claims. Plaintiffs moved for leave to file a late Notice of Claim pursuant to General Municipal Law or alternatively deeming the Notice of Claim timely served nunc pro tunc.
By statute, a Notice of Claim must be served upon the municipal corporation within 90 days after accrual of the cause of action and commenced within one year and 90 days.
Here, the current action accrued in April through 14 August 1989. More than fourteen years later, plaintiffs filed a Notice of Claim and commenced the action. Therefore, both the Notice of Claim and the complaint are time-barred unless a toll is applicable. In addition, the plaintiff mother’s claims are time-barred.
The infancy tolling provisions of the rules apply to the period for filing a Notice of Claim and commencing an action. In an action for ordinary negligence, the statute of limitations is three years and may be tolled for the period of infancy plus three years. However, the statute of limitations in a medical malpractice action is two years and six months and may not be tolled beyond 10 years. On another note, under the General Municipal Law, the Court has discretion to authorize service of a late Notice of Claim, provided that the statute of limitations has not expired. Plainly, if the case is found to be one of ordinary negligence, the court would have discretion to grant a late filing of Notice of Claim; but, if the matter is found to be one arising out of medical malpractice, the court has no discretion because it has been more than 10 years from the accrual date.
In a general sense, a hospital is always furnishing medical care; nonetheless, not every act of negligence toward a patient is considered as a medical malpractice. Medical malpractice is distinguished by the diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition. Failure to take a proper medical history, an act or omission by a nurse that constitutes medical treatment or bears a substantial relationship to rendering medical treatment by a licensed physician constitutes malpractice.
In the instant case, the Court finds that the plaintiffs’ claims regarding the mother’s obstetric care and treatment, the performance of certain tests and the taking of a proper history involve medical judgment and fall under medical malpractice. Thus, those claims are time-barred.
On the other hand, ordinary negligence has been found in claims for breach of duty to use due care in the selection of doctors and nurses, to furnish competent medical personnel, and failure to promulgate proper rules and regulations. Thus, the Court finds plaintiffs’ claims regarding the defendant’s failure to furnish competent medical personnel and to implement proper obstetric protocols and procedures to fall under ordinary negligence and are not time-barred due to the infancy toll.
In assessing whether the Manhattan Court should exercise its discretion to extend the time to serve a Notice of Claim, key factors include whether the plaintiff is an infant or mentally or physically incapacitated; whether there is a reasonable excuse for the failure to file a timely Notice of Claim; whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter; and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. While an infant’s special status is not altered by the action or inaction of his guardian, infancy alone will not suffice as a basis for granting plaintiff leave to file a late Notice of Claim and it is incumbent upon the claimant to demonstrate a nexus between the delay and the infancy. While the defendants may have acquired knowledge of the alleged negligence by virtue of holding the medical records, the 14 year delay would substantially prejudice the defendants in defending against alleged inadequate rules and regulations existing at infant plaintiff’s birth.
Consequently, the Court finds that plaintiffs have not established any nexus between infancy and the 14 year delay, and have not satisfied its burden of showing that the defendant has not been substantially prejudiced by their delay in moving for leave to file a late Notice of Claim; plaintiffs have not established their burden of showing that a late filing of Notice of Claim is warranted.
Henceforth, defendant’s motion to dismiss for failure to timely commence the action is granted and plaintiff’s motion for leave to file a late Notice of Claim is denied.
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