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The infant plaintiff Mammud Rashid Beretey (hereinafter the plaintiff) was born at the defendant New York City Health & Hospitals Corporation (hereinafter the Hospital) on November 2, 1996. Prior to his birth, the plaintiff’s mother had been given Pitocin to induce labor, but the labor did not progress and Hospital personnel ultimately performed a caesarean section. The Hospital’s records indicate that, at birth, the plaintiff suffered from perinatal asphyxia and respiratory depression. His birth record indicates that he weighed 9 pounds, 3 ounces and his Apgar score was 1 at 1 minute after birth, 5 at 5 minutes after birth, and 7 at 10 minutes after birth. The Hospital’s records do not indicate any signs of brain damage. For several days, the Long Island plaintiff received treatment for his condition in the Hospital’s infant intensive care unit. Seven days after birth, the plaintiff was discharged from the Hospital.
A Medical Malpractice Lawyer said that, the mother alleges that she learned through a school evaluation conducted in or about 2000, that the plaintiff would have to be placed in a special school for both physical and mental issues, and that he had severe cognitive developmental delays and some motor condition difficulties. In January 2006 the plaintiff, by his mother, served a notice of claim seeking damages for medical malpractice for the birth injury suffered by the plaintiff, alleging that the perinatal asphyxia he suffered at birth resulted from the negligence of the Hospital and its personnel in delaying to perform a cesarean section on his mother. The notice of claim asserted that the perinatal asphyxia caused him to develop cognitive delays, mental retardation, severe hyperactivity, and coordination difficulties.
In February 2006 the plaintiff, by his mother, commenced an action to recover damages for medical malpractice against the Hospital. In October 2006 he moved, in effect, for leave to deem the notice of claim timely served nunc pro tunc or, in the alternative, for leave to serve a late notice of claim. The Supreme Court denied the motion. Thus, the infant plaintiff Mammud Rashid Beretey, by his mother and natural guardian Mariama Sheriff, appeals from an order of the Supreme Court.
The issue in this case is whether the Manhattan Court erred in denying plaintiff’s late notice of claim.
The Court held that, in determining whether to grant leave to serve a late notice of claim, the court must consider several factors including whether (1) an infant is involved, (2) there is a reasonable excuse for the delay, (3) the public corporation acquired actual knowledge of the facts underlying the claim within 90 days or a reasonable time thereafter, and (4) the late service would result in substantial prejudice to the public corporation defending on the merits. Actual knowledge of the essential facts is an important factor in determining whether to grant an extension and “should be accorded great weight”.
In this case, the Court said that, on the issue of actual knowledge to be gleaned from the Hospital’s records, the plaintiff proffers expert affidavits which fail to objectively link the alleged medical malpractice at the time of his birth with the specific cognitive developmental delays and motor coordination difficulties diagnosed years later. As noted by the Supreme Court, there is no indication in the Hospital’s records that the plaintiff, either at the time of his discharge or upon follow-up visits, showed any signs of brain injuryor other impairment. Accordingly, the entries in the Hospital’s records at the time of the plaintiff’s birth injury do not equate with knowledge of facts underlying his claim.
The plaintiff also failed to offer an adequate excuse for the more than nine-year delay between his birth on November 2, 1996 and the service of the notice of claim in January 2006. The mother first learned in 2000 that the plaintiff had cognitive developmental delays and motor coordination difficulties, yet the first time she consulted with attorneys to investigate a potential claim was in 2005, five years later. This delay in consulting with counsel cannot be attributed to the plaintiff’s infancy and is not reasonable.
Further, the Court said that plaintiff failed to establish that the Hospital would not be substantially prejudiced in maintaining its defense on the merits as a result of the lengthy and unexcused delay in seeking leave to serve a late notice of claim. Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion. Hence, the Court affirmed the decision of the Supreme Court.
If you have a claim for medical malpractice against a medical institution, Kings Medical Malpractice Attorney or Kings Birth Injury Attorney at Stephen Bilkis and Associates can help you. We can provide you with the assistance of our Kings Injury Attorneys who can give you advice as to your rights and remedies in Court.