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The infant petitioner, Saad Muhammed, was born at defendant Hospital


The infant petitioner, Saad Muhammed, was born at defendant Hospital. The child was born prematurely at approximately 31-weeks gestation. It is alleged that the infant plaintiff suffers from, inter alia, cerebral palsy, spastic diplegia and developmental delay as a result of defendant’s medical malpractice due to failure to properly diagnose the amniotic infection of plaintiff infant’s mother, Sayyeda Fozia Tariq, and the defendant’s failure to properly monitor and intervene during the labor and delivery process.

Plaintiff filed an action for damages for medical malpractice of the defendant’s hospital in administering the birth of the infant petitioner. Defendant filed a motion to dismiss the complaint for failure to file a timely notice of claim.

The issue in this case is whether plaintiff timely filed the notice of claim against defendant hospital for its alleged medical malpractice.

The Nassau Court in deciding the case said that, in General Municipal Law § 50-e, the Legislature enacted a protocol for serving a notice of claim as a condition precedent to a suit against a public corporation. Pursuant to General Municipal Law § 50-e(5), a court has the discretion to extend a petitioner’s time to serve a notice of claim, as long as the extension does not exceed the time limit for commencement of an action against the public corporation. Section 50-e(1) requires that the notice be served within 90 days after the claim arises. The Legislature, however, gave courts discretion to extend the time and devised criteria for determining whether to grant extensions. General Municipal Law § 50-e(5) instructs the court to consider certain factors.

Section 50-e(5) reads in pertinent part:

“Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.”

The Court said that merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process. The relevant inquiry is whether the hospital had actual knowledge of the facts as opposed to the legal theory underlying the claim. Here the record reflects, the following factors: the infant was premature, i.e., born at approximately 31-weeks gestation; was of low birth weight, i.e., 3.2 pounds; needed immediate oxygen resuscitation and was on oxygen for five days after his birth; was transferred after birth to the NICU (Neonatal Intensive Care Unit) and remained hospitalized for one month after his birth. Under these circumstances, defendant’s possession of the medical records sufficiently constituted actual notice of the pertinent facts. Moreover, in light of the defendant’s actual knowledge of the essential facts constituting the claim, there is no substantial prejudice to its maintaining a defense. Finally, where, as here, there was actual notice and an absence of prejudice, the lack of a reasonable excuse for failing to timely serve a notice of claim will not bar the granting of leave to serve a late notice of claim. Accordingly, the notice of claim is deemed to be timely served, nunc pro tunc.

However, the Court said that since the infancy toll is personal to the infant plaintiff, Saad Muhammed, it does not extend to the derivative cause of action of the mother, Sayyeda Fozia Tariq. Accordingly, the derivative claims of Sayyeda Fozia Tariq are hereby dismissed.

In support of its motion for summary judgment, defendant Hospital submits the affirmation of Vincent M. D’Amico, M.D., who is board certified in obstetrics and gynecology. Dr. D’Amico concludes that defendant Hospital did not depart from good and accepted standards of medical practice with respect to its treatment of the infant plaintiff and that it did not contribute to or proximately cause his birth injuries. This evidentiary submission, which indicates that defendant Hospital did not deviate from accepted standards of medical care, is sufficient to meet defendant’s burden as a proponent of a summary judgment motion. The burden now shifts to plaintiffs to respond with rebutting medical evidence demonstrating that defendant’s medical malpractice actions were a departure from the accepted standard of care in the medical community and a proximate cause in bringing about the birth injury.

In opposition to defendant’s motion, the Suffolk plaintiffs submit the affirmation of Rosario R. Trifiletti, M.D., board certified in pediatric neurology, who opines that defendant Hospital’s departures from good and accepted standards of medical practice, inter alia, in failing to timely diagnose chorioamnionitis and to perform a c-section substantially contributed to perinatal brain injury, the consequences of which include cerebral palsy. Thus, the affirmations of Dr. Trifiletti and Dr. Halbridge raise questions of fact involving the issues of medical malpractice and proximate cause as to whether the infant plaintiff suffered injury due to the treatment he received from defendant Hospital.

Accordingly, those branches of defendant’s motion which seek to dismiss the complaint for failure to file a timely notice of claim and for summary judgment are denied; that branch of defendant’s motion seeking to dismiss the derivative claims of Sayyeda Fozia Tariq is granted. Plaintiffs’ cross motion for an order deeming plaintiffs’ notice of claim to be timely served nunc pro tunc and to serve an amended bill of particulars is granted in its entirety.

If you feel that you have been aggrieved by the actions of a hospital institution because of its medical malpractice, you need to seek the advice of a Nassau Medical Malpractice Attorney. Our Nassau Injury Attorneys at Stephen Bilkis and Associates are ready to help you and provide their legal services to protect your rights.

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