Petitioner was diagnosed with stomach cancer by hospital-one after undergoing an endoscopy and after staff at hospital-two and hospital-three who saw petitioner on many occasions through 2009 failed to make that diagnosis or perform any diagnostic testing. Petitioner claims that the delay in diagnosing her cancer allowed the cancer to progress and adversely affect her prognosis. Thus, an action for medical malpractice ensued.
Petitioner moves for leave to serve a late Notice of Claim, pursuant to the General Municipal Law. The New York City Health and Hospitals Corporation (NYCHHC) opposes the petition, contending that there has been at least a six month delay in filing the Notice of Claim against NYCHHC, and, more than one year ninety day delay in filing the Notice of Claim against the individual respondent, who NYCHHC claims, and petitioner does not dispute, last saw petitioner on 9 May 2008.
Under the General Municipal Law, a claimant commencing a tort action against a public corporation must serve and file a proper Notice of Claim within ninety days after the claim arises. The related action or proceeding must be commenced within one year and ninety days of the event. An application for an extension of time to serve a Notice of Claim may be made before or after the action has been commenced, but not after the one-year and ninety-day statute of limitations has run, unless the statute has been tolled.
As a rule, in determining whether to grant leave to file a late Notice of Claim pursuant to General Municipal Law, a court must consider the key factors of whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame, whether the municipality acquired actual notice of the essential facts of the claim within ninety days after the claim arose or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense. The presence or absence of any one factor is not determinative.
First, on the actual notice of petitioner’s claim:
It has been ruled that merely having or creating hospital records, without more, does not establish actual knowledge of a potential brain injury, spinal injury or any other 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. Thus, while agreeing with the plaintiff that General Municipal Law only requires actual knowledge of the essential facts constituting the claim, and not knowledge of a legal theory, the Court of Appeals has held that where, as here, there is little to suggest birth injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim.
Here, no affidavit is proffered to establish that the Bronx hospital records contain sufficient information about the facts constituting the claim so as to constitute actual knowledge. However, contrary to NYCHHC’s argument, the failure to supply such an affidavit is not fatal; actual notice is merely one element of the analysis.
Second, when the petitioner has a reasonable excuse for her filing delay:
In the instant case, although petitioner failed to demonstrate that NYCHHC had actual notice, the failure is not fatal as petitioner has a reasonable excuse for the short six month delay and NYCHHC is not prejudiced as a result. The petitioner only received the diagnosis of stomach cancer sometime in March of 2010; she had surgery on 22 March 2010; she stayed one week in the hospital; and she had chemotherapy and radiation treatment immediately thereafter. It is not reasonable to expect that petitioner would have served the Notice of Claim on NYCHCC within 90 days of her last treatment at NYCHCC’s hospitals, as NYCHHC claims she should have, given that she, as a layperson, would not have known that any malpractice occurred.
And third, on the issue of prejudice:
NYCHHC claims that it will be substantially prejudiced by the late filing because a prompt investigation was not done, due to lack of timely notice; that respondent cannot be certain that relevant staff members are still employed and even if they are, it will be difficult for them to remember events occurring as far back as 2007. However, petitioner made complaints to both hospitals through 2009. No effort has been made to ascertain whether staff members are still employed, and given that medical records are kept in the ordinary course of business, memories, if lost, can be refreshed by the records.
Here, petitioner alleges, and NYCHHC in Brooklyn does not dispute, that she saw hospital-two’s staff numerous times between 2007 through 2009 and hospital-three’s staff numerous times in August of 2009.
While it has not been demonstrated that NYCHHC had actual knowledge of the facts constituting petitioner’s claim, petitioner clearly has a reasonable excuse for the delay in serving the Notice of Claim, and the delay will not substantially prejudice NYCHHC.
In sum, the petition for leave to serve a late Notice of Claim is granted against respondent NYCHHC, and the Notice of Claim, as amended, is deemed timely served on respondent NYCHHC only; denied as to respondent individual.
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