Opinion
In12232/2015
07-05-2016
In the Matter of Application of Malika JADUSINGH, as Parent and Natural Guardian of the Infant A.J. for Leave to File a Late Notice of Claim , Petitioner/Plaintiff, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent/Defendant.
Wingate, Russotti, Shapiro & Halperin, LLP, By: Veronica K. Sewnarine, Esq., 420 Lexington Avenue, Suite 2750, New York, NY 10170, Attorney for Plaintiff/Petitioner McAloon & Friedman, P.C., By: Nicole L. Klein, Esq., 123 William Street, 25th Floor, New York, NY 10038-3804, Attorneys for Defendant/Respondents
Wingate, Russotti, Shapiro & Halperin, LLP, By: Veronica K. Sewnarine, Esq., 420 Lexington Avenue, Suite 2750, New York, NY 10170, Attorney for Plaintiff/Petitioner
McAloon & Friedman, P.C., By: Nicole L. Klein, Esq., 123 William Street, 25th Floor, New York, NY 10038-3804, Attorneys for Defendant/Respondents
Lara J. Genovesi, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed 1
Opposing Affidavits (Affirmations) 2
Reply Affidavits (Affirmations) 3
Introduction
Plaintiff/Petitioner Malika Jadusingh, as parent and natural guardian of A.J., moves by order to show cause, sequence number one pursuant to General Municipal Law section 50-e for leave to deem the notice of claim timely served nunc pro tunc. Respondent/Defendant, New York City Health and Hospitals Corporation, opposes this application.
Background & Procedural History
Infant petitioner A.J. sustained personal injuries at Kings County Hospital Center (KCHC) on August 25, 2012, when doctors allegedly failed to provide proper emergency obstetric care to his mother, petitioner Malika Jadusingh. Petitioner contends that this failure resulted in a nearly two hour delay in A.J.'s delivery, and as a result, he developed hypoxic ischemic encephalopathy, brain damage and severe developmental delays, including cerebral palsy (see Attorney's Affirmation at ¶ 3).
Petitioner contends that she arrived at KCHC at 12:00 p.m. Petitioner maintains that the medical malpractice lies specifically in the delay between the time that her membranes ruptured and when she was taken for an emergency cesarean section. Petitioner described the events of the day as follows,
4. On Saturday August 25, 2012, at around noon, I went to KCHC because I was having lower back pains and I was concerned. Once at KCHC, I went straight to the Labor & Delivery triage. However, the staff could not find my name in the hospital's system. I was then escorted into a private room which was dirty. Thus, I was escorted into a second private room.
5. I waited in this room for approximately 20-30 minutes before a nurse came in. This nurse placed a fetal heart monitor on me but could not get it to work. Without examining me, the nurse left the room. Approximately 15-20 minutes after that, another nurse came in and attempted to get the monitor to work but also failed and left the room without examining me.
6. Finally, after about an hour of being in this room, a nurse practitioner came in and got the monitor to work. During this time my water broke and the nurse practitioner stated that my baby's heart rate was dropping. At this point, there was some commotion amongst the staff outside my room because they were looking for a doctor. A doctor finally came in the room and examined me. I was 2 cm dilated and the doctor ordered an emergency c-section.
7. Other doctors, nurses, and staff members came rushing in, panicking. I was told that the OR was not available for approximately 20-30 minutes.
8. Once in the OR, an emergency c-section was performed and my baby was born at 2:13 pm that day.
(Petition of Malika Jadusingh, September 28, 2015, ¶¶ 5-8).
The medical records from KCHC present a timeline as follows,
1:15 p.m.: "SROM" [spontaneous rupture of membranes]; Amniotic fluid thick & meconium stained, in Triage.
1:39 p.m.: "Login time" in the Emergency Room.
1:41 p.m.: Fetal heart rate was taken, showing category 3 tracings and decelerations.
1:51 p.m.: Petitioner signed the consent form for Attending Surgeon Dr. Haynes to perform a cesarean section.
1:55 p.m.: Petitioner was admitted in Triage for an emergency cesarean section. "FHB Audible"
2:00 p.m.: Dr. Haynes signed "Attending Surgeon/Physician Pre-Operative Verification" form wherein the "Proposed Surgical/Invasive Procedure" is described as "Emergent Primary Cesarean Section".
2:13 p.m.: A.J. born.(see Order to Show Cause, Exhibit C, KCHC Labor & Delivery Records; see also Affirmation in Opposition, Exhibit B).
A.J. was born limp and blue. He did not cry at birth. The records show that meconium was suctioned from below his vocal chords twice. After approximately one minute, spontaneous respiration occurred. His Apgars score was 4 at one minute of life, and 8 at five minutes of life (see Notice of Petition, Exhibit D, Newborn Resuscitation Record).
"An Apgar score is used to evaluate the condition of a newborn infant. The range is from zero to 10, with 10 being a perfect score" (Wally G. ex rel. Yoselin T. v. New York City Health & Hosps. Corp. (Metro. Hosp.), ––– NY3d ––––, 2016 NY Slip Op. 04443 [2016, Abdus-Salaam J., dissenting, FN. 2] ). "Apgar is a test performed at one and five minutes after birth. A score of 8 or 9 out of 10 is normal and indicates the newborn is in good condition." (Cartagena ex rel. Gilliam v. New York City Health & Hosps. Corp. , 93 AD3d 187, 938 N.Y.S.2d 77 [1 Dept., 2012, FN. 1] ).
A.J. suffered two seizures while in the neonatal intensive care unit (NICU) at KCHC. The first seizure, which lasted approximately one second, occurred on August 25, 2012, at 10:30 p.m., when A.J. was approximately eight hours old. The second seizure, which lasted less than one minute, took place the following day, on August 26, 2012, at 6:00 a.m. (Notice of Petition, Exhibit D, Pediatric Neurology Outpatient Evaluation, September 24, 2012, pp. 1-2). A.J. suffered from no additional seizures while in the care of KCHC. On September 3, 2012, A.J. was discharged from the NICU in stable condition.
In December of 2012, when A.J. was approximately four months of age, he was diagnosed with developmental delays by physicians at State University of New York Downstate University Hospital (SUNY Downstate). At 11 months of age, he was diagnosed with mycolic seizures by physicians at New York Presbyterian Hospital. In October of 2013, he was diagnosed with cerebral palsy. At that time, a brain MRI was performed and the findings were consistent with hypoxic ischemic encephalopathy.
Approximately one month later, in November of 2013, petitioner Malika Jadusingh, after realizing the severity of A.J.'s health issues, retained counsel. Counsel served a notice of claim on the New York City Health and Hospitals Corporation (HHC) on November 14, 2013. In the summer of 2014, petitioner substituted counsel. A 50-h hearing was conducted in January of 2015. Counsel for petitioner contends that in approximately February of 2015, she asked whether the counsel for HHC would agree to deem the notice of claim as timely served nunc pro tunc and counsel declined. Thereafter, petitioner filed the instant application for leave to deem her notice of claim as timely served nunc pro tunc in October of 2015.
A portion of the 50-h hearing transcript is annexed to the petitioner's order to show cause as Exhibit B. The entire transcript was not included.
Petitioner's application was first filed on October 7, 2015. It is unclear to this Court why this application was rejected by the Ex Parte Office at that time. Petitioner filed another application on October 30, 2105. This order to show cause was signed by the Hon. Johnny Lee Baynes on November 10, 2015.
Discussion
" General Municipal Law § 50—e (1)(a) requires that a notice of claim be served on a public corporation ‘within ninety days after the claim arises’ " (Wally G. ex rel. Yoselin T. v. New York City Health & Hosps. Corp. (Metro. Hosp.), ––– NY3d ––––, supra ; see Stiff v. City of New York , 114 AD3d 843, 980 N.Y.S.2d 550 [2 Dept., 2014] ; see also Foster v. City of New York, 112 AD3d 783, 977 N.Y.S.2d 287 [2 Dept., 2013] ). Accordingly to New York Unconsolidated Laws section 7401(2), which incorporates the provisions contained in GML section 50-e, an action cannot be commenced against HHC unless a notice of intention to commence such action is served on HHC within 90 days (see Scantlebury v. New York City Health and Hospitals Corp., 4 NY3d 606, 797 N.Y.S.2d 394 [2005], citing New York Unconsolidated Laws § 7401[2] ). " ‘[N]otice of intention to commence [an] action’ required by section 7401(2) is a condition precedent to a suit against HHC, the functional equivalent of a notice of claim (id ).
Where notice is not timely served, "the determination to grant leave to serve a late notice of claim lies within the sound discretion of the Supreme Court" ( Barrett v. Vill. Of Wappingers Falls, 130 AD3d 817, 12 N.Y.S.3d 577 [2 Dept., 2015] ; see Wooden v. City of New York, 136 AD3d 932, 25 N.Y.S.3d 333 [2 Dept., 2016] ; Nurena v. Westchester Cnty., 120 AD3d 781, 992 N.Y.S.2d 86 [2 Dept., 2014] ). A claimant must petition for leave to serve a late notice of claim, or to deem a notice of claim timely served nunc pro tunc, within one (1) year and 90 days from the date which the claim accrues. Otherwise the claim is barred by the statute of limitations (see GML § 50-e[5] ; Laroc v. City of New York , 46 AD3d 760, 847 N.Y.S.2d 677 [2 Dept., 2007] ). "In medical malpractice actions, ‘the cause of action accrues on the date when the alleged original negligent act or omission occurred’ (Wally G. v. New York City Health & Hosps. Corp., ––– NY3d ––––, supra , quoting Young v. New York City Health & Hosps. Corp., 91 NY2d 291, 670 N.Y.S.2d 169 [1998] ).
"However, section 50-e (5) provides that a court, ‘in its discretion,’ may grant an application extending the time to serve a notice of claim as long as the application is made within the limitations period for commencing the action, including any tolls or extensions" ( Plaza ex rel. Rodriguez v. New York Health & Hosps. Corp., 21 NY3d 983, 993 N.E.2d 409 [2013] ).
CPLR 208 provides that "[i]f a person entitled to commence an action is under a disability because of infancy ... at the time the cause of action accrues, and ... the time otherwise limited [for commencing the action] is less than three years, the time shall be extended by the period of disability." Where a medical malpractice action accrues during infancy, the extension is limited to 10 years from the time of accrual
(id., citing CPLR 208 ).
In the instant case, the alleged malpractice occurred on August 25, 2012, the day of A.J.'s birth. It is uncontested that this action was brought timely. Pursuant to CPLR section 208, the statute of limitations is tolled, due to petitioner's infancy. However, the notice of claim was due by November 23, 2012. Petitioner filed a late notice of claim on November 14, 2013, nearly one year beyond the 90 day period. Petitioner maintains that this notice of claim was accepted by HHC, and its timeliness was never contested. Petitioner filed the instant application for leave to deem that notice of claim as timely filed nunc pro tunc, on October 30, 2015 which is more than two years and 11 months beyond the 90 day period.
Leave to File the Late Notice of Claim
In determining whether to grant an application to deem a late notice of claim timely served nunc pro tunc ,
the court must consider all relevant circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant was an infant at the time the claim arose and, if so, whether there was a nexus between the claimant's infancy and the delay in service of a notice of claim, (3) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim and for the subsequent delay in seeking leave to serve a late notice of claim, and (4) the public corporation was substantially prejudiced by the delay in its ability to maintain its defense on the merits [citations omitted] ( Lyles v. New York City Health & Hosps. Corp., 121 AD3d 648, 993 N.Y.S.2d 344 [2 Dept., 2014], citing General Municipal Law § 50—e[5] ; see Williams v. Jamaica Hosp. Med. Ctr., 124 AD3d 636, 1 N.Y.S.3d 252 [2 Dept., 2015], lv. denied sub nom., Williams v. Jamaica Hosp. Med. Ctr., City of New York, 26 NY3d 912, 43 N.E.3d 374 [2015] ).
"While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance" ( Mohamed v. New York City, 139 AD3d 858, 31 N.Y.S.3d 182 [2 Dept., 2016], citing Placido v. County of Orange, 112 AD3d 722, 977 N.Y.S.2d 64 [2 Dept., 2013] ; see Mitchell v. City of New York , 134 AD3d 94, 122 N.Y.S.3d 130 [2 Dept., 2015] ).
Infancy/Reasonable Excuse
"A claimant's infancy will automatically toll the applicable one-year and 90—day statute of limitations for commencing an action against a municipality [citations omitted]. However, the factor of infancy alone does not compel the granting of a motion for leave to serve a late notice of claim [citations omitted] ( Arias v. New York City Health & Hosps. Corp. (Kings Cty. Hosp. Ctr.), 50 AD3d 830, 855 N.Y.S.2d 265 [2 Dept., 2008], citing Williams v. Nassau Cty. Med. Ctr. , 13 AD3d 363, 786 N.Y.S.2d 207 [2 Dept., 2004], aff'd sub nom. , Williams ex rel. Fowler v. Nassau Cty. Med. Ctr., 6 NY3d 531, 814 N.Y.S.2d 580 [2006] ). "The history of section 50—e (5) and the case law demonstrate that a nexus between infancy and delay, while not a requirement, remains a statutory factor that a court should take into account" ( Williams ex rel. Fowler v. Nassau Cty. Med. Ctr., 6 NY3d 531, supra ). A nexus between infancy and delay can be shown when the delay is the product of the claimant's infancy (see id.; see also Flores v. County of Nassau , 8 AD3d 377, 777 N.Y.S.2d 739 [2 Dept., 2004] ). However, "[t]he plaintiff's infancy, without a showing of any nexus between the infancy and the delays, [i]s insufficient to constitute a reasonable excuse" ( Williams v. Jamaica Hosp. Med. Ctr. , 124 AD3d 636, supra ; Lyles v. New York City Health & Hosps. Corp. , 121 AD3d 648, supra ).
Petitioner first contends that she did not retain counsel until November of 2013 because she "had an injured baby to care for" and was unaware of the severity of A.J.'s condition (see Affirmation in Reply, ¶3). Petitioners first attorney served a late notice of claim without leave of the court on HHC on November 14, 2013. Petitioner thereafter substituted counsel in September of 2014 (see Petition of Malika Jadusingh, ¶ 12). Counsel avers that they could not make the instant application for leave to deem the notice of claim as timely filed nunc pro tunc, because they had to wait for the file to be transferred from prior counsel and for the medical records to be exchanged by HHC (see Affirmation in Support, ¶ 14). Counsel contends that HHC provided the medical records in October 2014 (see id. , ¶ 6).
Respondent HHC contends that petitioner failed to establish a reasonable excuse for the delay of over three years in seeking leave to deem the late notice of claim timely served nunc pro tunc. HHC avers that petitioner failed to establish that infancy had any bearing on her late filing. HHC further contends that they provided petitioner's prior counsel with a copy of the medical records in March of 2014 (see Affirmation in Opposition, p 6). HHC maintains that although counsel for petitioner stated that there were medical records missing when they received the file from prior counsel, HHC was never informed that any records were missing. HHC again provided the entire Kings County Hospital records in October 2014 (see id. ).
In the instant case, petitioner failed to demonstrate a reasonable excuse for the delay of over three years in seeking leave to deem the late filed notice of claim timely filed nunc pro tunc. Petitioner first contends that she was preoccupied with caring for an injured infant and this added to her delay. She provided medical evidence in support of this contention which demonstrated A.J.'s condition in 2013. However, even assuming this Court accepts that as a reasonable excuse, petitioner failed to explain the additional two year delay from the time she retained counsel and filed a notice of claim, to the time she sought leave to deem that notice of claim timely filed nunc pro tunc. Petitioner's excuse for that additional delay is that they were missing medical records in the prior counsel's file, and did not receive the records from HHC until October of 2014. However, petitioner did seek leave of this court until October of 2015, one year after they received the second copy of petitioners HHC records. The assertion that counsel had to wait to make the motion because they were waiting to receive the medical records from HHC is not reasonable (see Wally G. ex rel. Yoselin T. v. New York City Health & Hosps. Corp. (Metro. Hosp.), 120 AD3d 1082, 992 N.Y.S.2d 232 [1 Dept., 2014], aff'd, 2016 WL 3188975 [2016] ).
Further, petitioner's "lack of awareness of the possibility of a lawsuit is not a reasonable excuse" for her nearly 15 month delay in retaining counsel and her additional near two year delay in seeking leave (see Bucknor v. New York City Health & Hosps. Corp. (Queens Hosp. Ctr.), 44 AD3d 811, 844 N.Y.S.2d 100 [2 Dept., 2007] [where the court held that petitioner's lack of awareness of the possibility of a lawsuit did not excuse the five year delay in retaining counsel] ). Additionally, petitioner's infancy, without a showing of a nexus between the infancy and the mother's delay in retaining counsel, is insufficient to constitute a reasonable excuse (see Lyles v. New York City Health & Hosps. Corp., 121 AD3d 648, supra; Williams ex rel. Fowler v. Nassau Cty. Med. Ctr., 6 NY3d 531, supra ; Bazile v. City of New York, 94 AD3d 929, 943 N.Y.S.2d 131 [2 Dept., 2012] ). Accordingly, petitioner failed to provide a reasonable excuse for the delay in bringing the instant application.
Nonetheless, the absence of a reasonable excuse is not necessarily fatal to a petitioner's request for leave to file a late notice of claim (see Matter of Fox v. New York City Dept. of Educ. , 124 AD3d 887, 2 N.Y.S.3d 210 [2 Dept., 2015], citing Bonaguro v. City of New York, 122 AD3d 731, 996 N.Y.S.2d 144 [2 Dept., 2014] ). Where there is actual knowledge and an absence of substantial prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim (see id.).
Actual Knowledge
"In a proceeding pursuant to General Municipal Law § 50—e(5) against a public hospital, to establish actual knowledge of the essential facts constituting the claim, it is not enough for the petitioner to show that the respondent possessed or maintained medical records" ( Khan v. New York City Health & Hosps. Corp., 135 AD3d 940, 24 N.Y.S.3d 163 [2 Dept., 2016], quoting Williams v. Nassau County Med. Ctr., 6 NY3d 531, supra ). "A medical provider's mere possession or creation of medical records does not ipso facto establish that it had ‘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’ " (Wally G. ex rel. Yoselin T. v. New York City Health & Hosps. Corp. (Metro. Hosp.), ––– NY3d ––––, supra , citing Williams ex rel. Fowler v. Nassau Cty. Med. Ctr., 6 NY3d 531, supra ). "[T]he medical records must do more than ‘suggest’ that an injury occurred as a result of malpractice" (id. ).
Petitioner contends that the medical records in this case are sufficient to provide actual knowledge of the essential facts of the claim to HHC. Petitioner avers that the facts of this case are distinguishable from those in Williams v. Nassau Cty. Med. Ctr. (6 NY3d 531, supra ). Petitioner acknowledges that in Williams , the Court of Appeals held that "although there was difficulty in the delivery, there was ‘scant reason to identify or predict any lasting harm to the child, let alone a developmental disorder or epilepsy’ " (Notice of Petition, Attorney's Affirmation at ¶ 10, citing Williams v. Nassau Cty. Med. Ctr, 6 NY3d 531, supra ). However, petitioner avers that in the instant case, unlike Williams , the medical records demonstrate that the infant "suffered meconium aspiration and was in respiratory distress requiring intubation and transfer to the NICU for 9 days where she developed a seizure disorder and was diagnosed with hypoxic ischemic encephalopathy a known antecedent to cerebral palsy" (Attorney's Affirmation, ¶ 12).
Petitioner further contends that the infant was treated by doctors at KCHC and its affiliate hospital, SUNY Downstate for approximately one year after the infant's birth. Based on this, the doctors were in a position to evaluate whether the infant had suffered brain damage as a result of the complications (see Attorney's Affirmation, ¶ 13). Petitioner avers that the three year delay is not unreasonable, as the Second Department upheld a delay of five years in Caminero v. New York City Health and Hospitals Corp., (21 AD3d 330, 800 N.Y.S.2d 173 [2 Dept., 2005] ).
Respondent HHC contends that petitioner's 2013 notice of claim is a nullity as it was filed without leave of court. HHC avers that the mere possession of medical records does not provide them with actual knowledge that they departed from good and accepted practice or that the hospital's acts or omissions inflicted injuries on the petitioner. HHC maintains that the facts of the instant case are analogous to those in Williams , in that the records are "patently insufficient" and " ‘do not evince that the medical staff, by its acts or omissions, inflicted any injury’' or otherwise committed malpractice" (see Affirmation in Opposition, p. 11).
Specifically, HHC contends that the medical records do not support petitioner's claim that there was a nearly two hour delay in the infant's delivery. Respondent maintains that "SROM (spontaneous rupture of membranes) occurred in triage at 1:15 p.m., and thick meconium was noted" (Affirmation in Opposition at p. 8). The "login time" in the Emergency Room records is 1:39 p.m. HHC contends that after fetal monitoring indicated "Category 3 tracings", an emergency cesarean section was ordered promptly. "At 1:50 pm, petitioner signed a consent for the C-section". She was in the operating room at 1:59 p.m., and the infant was delivered at 2:13 p.m." (see id., p 8-9). HHC maintains that, based on the records, the infant was delivered within one hour from the time that petitioner's membranes ruptured.
HHC further contends that the allegations in counsel's affirmation and petitioner's affidavit are insufficient to meet their burden, because each is a layperson, and are not qualified to render medical opinions about what constitutes malpractice. Additionally, HHC avers that petitioner cannot rely on the records from SUNY Downstate or New York Presbyterian Hospital to show that HHC had actual knowledge.
"For purposes of determining whether leave to serve a late notice of claim should be granted, determinations concerning a medical provider's ‘actual knowledge’ and whether the medical records ‘evince’ that the medical provider inflicted injury on the plaintiff rest in the sound discretion of the court." (Wally G. ex rel. Yoselin T. v. New York City Health & Hosps. Corp. (Metro. Hosp.), ––– NY3d ––––, supra ). "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 [internal quotation marks omitted]" ( Arias v. New York City Health & Hosps. Corp. (Kings Cty. Hosp. Ctr.), 50 AD3d 830, supra, quoting Williams ex rel. Fowler v. Nassau Cty. Med. Ctr., 6 NY3d 531, supra ).
In the instant case, the medical records do not evince that the medical staff, by its actions or omissions inflicted any injury to the infant petitioner. Petitioner initially alleged that there was a two hour delay from the time she arrived at the hospital at 12:00 p.m. to the time she was taken to the operating room for an emergency cesarean section at 2:00 p.m. In her affidavit, petitioner describes waiting an hour for a nurse to take a proper reading of the fetal heart rate. Petitioner stated that after a nurse practitioner was able to read the fetal heart rate, her water broke, and she was informed that the fetal heart rate was dropping. She described a commotion once the doctor ordered an emergency cesarean section. Petitioner stated that there was an additional 20-30 minute delay for an operating room to become available.
However, the medical records do not reflect the timeline as described by petitioner. The medical records indicate that there was a spontaneous rupture of petitioner's membranes at 1:15 p.m. The amniotic fluid was meconium stained. Then a "login" time was recorded in the emergency room at 1:39 p.m. The fetal heart reading is timestamped at 1:41 p.m. Plaintiff signed a consent form for an emergency cesarean section at 1:51 p.m. Petitioner was admitted in triage for an emergency cesarean section at 1:55 p.m. The Attending Surgeon, Dr. Haynes, signed a Pre-Operative Verification at 2:00 p.m. which describes the "proposed surgical/invasive procedure" as "Emergent Primary Cesarean Section. A.J. was born at 2:13 p.m. In her affirmation in reply, counsel, acknowledging this timeline, stated that because the fetus was not checked until 1:41 p.m., "there was at least a 26 minute delay before the fetal heart monitor was placed" after the membranes ruptured and meconium was noted at 1:15 p.m. (see Affirmation in Reply, ¶ 5).
Contrary to HHC's contention, the use of an expert affidavit is not required for the purpose of a notice of claim of medical malpractice. However, it has been noted that submission of an expert affirmation in support of such a petition would make the application stronger (see Rojas v. New York City Health & Hosps. Corp., 127 AD3d 870, 6 N.Y.S.3d 294 [2 Dept., 2015] ; see generally Perez ex rel. Torres v. New York City Health & Hosps. Corp., 81 AD3d 448, 915 N.Y.S.2d 562 [1 Dept., 2011] [where the court found that an expert affidavit from defendant was necessary to refute the affidavit submitted by petitioner] ). This Court certainly agrees with that contention. This Court's reading of the medical records, without the use of an expert affidavit, does not evince any acts or omissions by the KCHC staff, which caused A.J.'s injury (see Wally G. ex rel. Yoselin T. v. New York City Health & Hosps. Corp. (Metro. Hosp.), ––– NY3d ––––, supra ).
It is clear from the records that the mother's membranes ruptured at 1:15 p.m. while in triage; the mother was logged into the emergency room at 1:39 p.m.; the fetal heart rate, taken at 1:41 p.m., showed decelerations; the child was delivered by emergency cesarean section at 2:13 p.m. The infant was delivered within one hour of the mother's membranes rupturing. A.J. was born in respiratory distress with possible Meconium Aspiration Syndrome from swallowing meconium. It is also clear that A.J. suffered two seizures, each lasting less than one minute, within the first 24 hours of his life. He was intubated and ventilated, and observed in the NICU for 9 days. However, the records show that A.J. was treated by hospital staff for the two seizures, and suffered no further seizures during his stay. In an Inpatient Progress Note from August 31, 2012, the record provides "subtle neonatal seizures, good prognosis" (see Order to Show Cause, Exhibit D, p. 81). Further, the records show that A.J. was treated for his respiratory distress. An Inpatient Progress Note from September 3, 2012, provides that he was weaned off of respiratory aids and is now "stable on room air" (see id. at p. 100). He was discharged on September 3, 2012, in stable condition (see id. at Neonatal Discharge Summary).
In this case, similar to Williams ex rel. Fowler v. Nassau Cty. Med. Ctr. , it appears based on the medical records that "the delivery was difficult, but that when it was over there was scant reason to identify or predict any lasting harm to the child, let alone a developmental disorder or epilepsy. The infant's Apgar scores were satisfactory" ( 6 NY3d 531, supra ). As stated above, A.J.'s Apgar score was 8 at five minutes of life, which is considered normal and indicates the newborn is in good condition (see Cartagena ex rel. Gilliam v. New York City Health & Hosps. Corp. , 93 AD3d 187, supra ).
Based on the records alone, without any expert affidavits, the 26 minute delay from the membrane rupture to the fetal heart rate reading, and the hour from the rupture to the delivery do not appear to be an act or omission which caused A.J.'s injury. A.J. was discharged from KCHC nine days later in stable condition. He was not diagnosed with developmental delays until he was four months of age, mycolic seizures at 11 months of age and cerebral palsy at approximately 14 months of age (see Bucknor v. New York City Health & Hosps. Corp. (Queens Hosp. Ctr.), 44 AD3d 811, supra ).
Petitioner contends in her affidavit submitted in support of the instant motion that the 26 minute delay from the time her membranes ruptured was caused by the nursing staff who failed to get a prompt fetal heart rate reading after petitioner's membranes ruptured and meconium was found in the amniotic fluid. Petitioner maintains that this delay amplified the delay in her emergency cesarean section, and therefore caused the infant petitioner's injury. Even assuming, as petitioner argues, that this 26 minute delay from the time of the rupture to the time the fetal heart rate was taken does suggest that there was an act or omission on behalf of the hospital staff which caused the injury, the Court of Appeals recently clarified in Wally G. that "the medical records must do more than merely "suggest" that an injury occurred as a result of malpractice" ( 2016 NY Slip Op. 04443, supra ). Although the gap in time from the membranes rupturing and the time the fetal heart rate was taken is memorialized in the medical records, petitioner's contention that the delay was caused by two different nurses who failed to correctly take the fetal heart rate is not memorialized in the records.
Petitioner relies on HHC's possession of the medical records during the 90 day statutory period, stating that this possession imputes actual knowledge of petitioner's claims. However, HHC could not have had actual knowledge of the alleged act or omission based on their possession of the medical records when the alleged act or omission is not contained therein. HHC was not apprised of this allegation until receipt of petitioner's affidavit, attached to the instant application, three years after the cause of action accrued. It is unclear to this Court that the one hour between the rupture of the membranes and the emergency cesarean section, as reflected in the medical records, evince that the medical staff inflicted an injury on plaintiff during the birth process. Accordingly, petitioner failed to demonstrate that the records evinced that the HHC medical staff inflicted an injury on petitioner during the birth process.
Additionally, the records of subsequent treatment at SUNY Downstate and New York Presbyterian Hospital cannot be used to show that KCHC had actual knowledge of the essential facts constituting the claim (see Abad ex rel. Morales v. New York City Health & Hosps. Corp., 114 AD3d 564, 980 N.Y.S.2d 450 [1 Dept., 2014], leave to appeal denied sub nom., Abad v. New York City Health & Hosps. Corp., 24 NY3d 909, 23 N.E.3d 153 [2014] ). Further, the fact that a 50-h hearing was conducted, alone, does not provide actual knowledge ( Scantlebury v. New York City Health and Hospitals Corp., 4 NY3d 606, supra , citing Stallworth v. New York City Health and Hospitals Corporation, 243 AD2d, 663 N.Y.S.2d 287 [2 Dept., 1997] ["the Comptroller of the City of New York is insufficient to constitute service on [HHC], the proper party to be served" and "[t]he lack of service ... [is] not cured by the participation of [HHC] in the General Municipal Law § 50—h hearing or by the provisions of General Municipal Law § 50—e (3)(c)"] ). Accordingly, the petitioner failed to establish that HHC had actual knowledge of the essential facts constituting the claim within the 90-day statutory period or a reasonable time thereafter.
Substantial Prejudice
The purpose of the notice of claim requirement is to protect public corporations against stale claims and to give them an opportunity to timely and efficiently investigate tort claims (see generally Felice v. Eastport/S. Manor Cent. Sch. Dist. , 50 AD3d 138, supra; see also Peterson v. New York City Dep't of Envtl. Prot. , 66 AD3d 1027, 887 N.Y.S.2d 269 [2 Dept., 2009] ). In seeking leave to file a late notice of claim, petitioner has the burden of showing a lack of prejudice (see Borrero v. New York City Housing Authority, 134 AD3d 1104, 22 N.Y.S.3d 540 [2 Dept., 2015] ; Nurena v. Westchester Cnty/. , 120 AD3d 781, supra ). "Proof that the defendant had actual knowledge is an important factor in determining whether the defendant is substantially prejudiced by such a delay" ( Wade v. New York City Health and Hospitals Corp., 85 AD3d 1016, 925 N.Y.S.2d 630 [2 Dept., 2011], quoting Williams ex rel. Fowler v. Nassau Cty. Med. Ctr., 6 NY3d 531, supra ).
Petitioner contends that there is no substantial prejudice in this matter because a notice of claim was timely served on November 14, 2013, one year and three months after the infant's birth. The medical records are in electronic form, "so there is no difficulty identifying witnesses", and doctors who are no longer in the employ of the hospital can be located by a number of databases such as the American Board of Medical Specialties, or the New York State Professional Licensing Division, among others. Further, HHC had the opportunity to conduct a 50-h hearing of the claimant on January 21, 2015.
HHC contends that petitioner failed to rebut the presumption of prejudice. As a result of the delay, HHC was not permitted to conduct an early investigation to prepare their defense or potentially settle the case. HHC maintains that because the records do not mirror petitioner's version of the timeline, they would be prejudiced because they have to now investigate highly disputed facts three years later. Members of the staff at KCHC will not have an independent recollection of the events at this point in time.
In the instant case, plaintiff failed to rebut the presumption that HHC will be prejudiced by the delay. Petitioner served her notice of claim after retaining counsel in November 2013. That notice of claim is a nullity as it was served without leave of court, and it was served nearly a year after expiration of the 90-day statutory period. Further, petitioner failed to move for leave to deem that notice of claim timely filed nunc pro tunc for almost two additional years. While there is no evidence before this Court that the medical staff is currently unavailable, that is insufficient to rebut the presumption that HHC is prejudiced by this nearly three year delay. Even if counsel is able to locate the medical staff, there is no guarantee that they will still have the opportunity to interview the witnesses while their memories are fresh (see Matter of Fernandez v. City of New York, 131 AD3d 532, 15 N.Y.S.3d 166 [2 Dept., 2015] ). Therefore, based on the record before this Court, HHC is substantially prejudiced by the petitioner's delay.
Conclusion
Accordingly, the petitioner's motion for leave to deem the notice of claim as timely served nunc pro tunc is denied. Petitioner failed to demonstrate that she had a reasonable excuse for the delay in filing and the subsequent delay in moving for leave. Further, petitioner failed to demonstrate that HHC had actual knowledge of the essential facts constituting the claim by virtue of the medical records. Finally, petitioner failed to rebut the presumption that HHC would be prejudiced by the nearly three year delay.
The foregoing constitutes the decision and order of this Court.