Opinion
# 2016-015-165 Claim No. None Motion No. M-88541
10-19-2016
EMMANUEL JANVIER v. THE STATE OF NEW YORK
Emmanuel Janvier, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Thomas R. Monjeau, Esquire Assistant Attorney General
Synopsis
Movant's application for late claim relief was denied where his claim alleging the failure to properly diagnose and treat his wrist injury sounded in medical malpractice and movant failed to establish that his late claim motion was timely. While the continuing treatment doctrine applies to such causes of action, movant failed to establish whether the treatment provided at the various prisons to which he had been transferred "was in relevant association" with the initial treating physician or whether there was a continuing relationship between movant and the initial treating physician. Timeliness of the application aside, movant additionally failed to demonstrate reasonable cause to believe that a valid cause of action exists because no expert medical proof was submitted.
Case information
| UID: | 2016-015-165 |
| Claimant(s): | EMMANUEL JANVIER |
| Claimant short name: | JANVIER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-88541 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Emmanuel Janvier, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Thomas R. Monjeau, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 19, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, a pro se inmate, seeks late claim relief pursuant to Court of Claims Act § 10 (6).
In his proposed claim, movant asserts a cause of action for negligence and medical malpractice arising from the alleged delay of the Department of Corrections and Community Supervision (DOCCS) in providing adequate medical care for an injury to his left wrist. He alleges that "due to inaction, misdiagnosis, and years of waiting for DOCCS medical personnel to properly treat him, his injury has became [sic] [worse] and [is] causing his bones to grow abnormal [sic] and causing daily excruciating pain . . ." (proposed claim, ¶ 8). Review of the uncertified medical records attached to the motion (movant's Exhibit A), indicate that movant was treated for a wrist injury in six different prison infirmaries as well as the Erie County Medical Center. He was first seen in the Mt. McGregor Correctional Facility infirmary on February 13, 2012 complaining of an injury to his left wrist that occurred two weeks prior in the gymnasium. An X ray performed on February 21, 2012 indicated a "normal wrist" and that no further action was required (see id., Diagnostic Testing Notification). Movant's ambulatory health records reflect that he was treated for left wrist pain in the prison infirmaries at both Mt. McGregor and Greene Correctional Facilities on four occasions in 2012, the last visit that year being on April 25, 2012. An ambulatory health record dated April 25, 2012 from Greene Correctional Facility reflects that although movant continued to experience pain, he was able to exercise and had full range of motion and was "improving" (movant's Exhibit A, ambulatory health record dated April 25, 2012). After more than an eight-month gap in treatment, movant was seen in the infirmary at Mid-State Correctional Facility on January 4, 2013 complaining of wrist pain and was prescribed ibuprofen. He was again seen on January 10, 2013 after re-injuring his wrist in a fall and complained of continued pain, but was found to have full range of motion and it was noted that "no intervention indicated at this time" (id. at January 10, 2013 ambulatory health record). Movant was thereafter treated in the infirmary at Mid-State Correctional Facility for wrist pain on five more occasions in 2013, the last visit on June 25, 2013. After a nearly two-year gap in treatment, movant was treated in the infirmary at Gowanda Correctional Facility for complaints of wrist and shoulder pain on May 13, 2015, at which time X rays were ordered. A note in the ambulatory health record of May 20, 2015 states that the X rays revealed arthritis in movant's shoulder and the suggestion of "abutment syndrome" associated with "TFCC degeneration" of the left wrist. Movant was thereafter treated for his wrist condition 17 more times in 2015, including eight visits to the infirmary at Gowanda Correctional Facility and nine visits to the infirmary at Collins Correctional Facility. A note in the July 15, 2015 Gowanda Correctional Facility record indicates movant "has had PT" (id. at July 15, 2015 ambulatory health record). An MRI examination of movant's left wrist performed on August 4, 2015 indicated "marked extensor tenosynovitis, tear of the triangular fibrocartilage and small radiocarpal joint effusion" (id. at MRI report dated August 4, 2015). Movant was seen for an orthopedic consultation at Erie County Medical Center on October 27, 2015 which, according to the report, indicated a possible need for wrist arthroscopy (id. at consultant's report dated Oct. 27, 2015). An ambulatory health record progress note from Gowanda Correctional Facility appears to indicate that a "TFCC injection" of the left wrist was performed (id. at Oct. 27, 2015 ambulatory health record). A progress note from Erie County Medical Center dated November 24, 2015 indicates that the prior steroid injection provided only minimal relief, that a splint and NSAIDs (nonsteroidal anti-inflammatory drugs) were prescribed, and that movant had elected to proceed with surgery. Although an ambulatory health record note of November 25, 2015 from Collins Correctional Facility where movant had apparently been transferred includes a notation indicating that movant had declined surgery, the ambulatory health note of November 28, 2015 indicates that movant had changed his mind and elected to undergo the surgery. Although the ambulatory health record progress note of January 14, 2016 from Wyoming Correctional Facility indicates that surgery had not yet been scheduled, movant indicates in an unsworn statement entitled Motion For Permission To File A Late Claim that surgery was performed on his wrist on April 7, 2016.
In addition to submitting the above referenced ambulatory health records, movant supports his motion with grievance records from 2013 relating to his complaints of a lack of treatment.
Court of Claims Act § 10 (6) permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
The first issue for determination upon a late claim motion is whether the application is timely. Section 10 (6) requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." The statute of limitations applicable to actions against a citizen of the state is 3 years for ordinary negligence (CPLR 214 [5]) and two and one-half years for medical malpractice (CPLR 214-a). In order to assess the timeliness of the movant's application, therefore, it must be determined when the alleged causes of action accrued.
As a general rule, a medical malpractice claim accrues on the date of the alleged wrongful act or omission (Nykorchuck v Henriques, 78 NY2d 255 [1991]). The continuous treatment doctrine, codified in CPLR 214-a (see Borgia v City of New York, 12 NY2d 151 [1962]), provides a stay of the statutory limitations period "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint" (McDermott v Torre, 56 NY2d 399, 405 [1982], quoting Borgia v City of New York, 12 NY2d 151, 155; Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998]). "The doctrine rests on the premise that the trust and confidence that marks such relationships puts the patient at a disadvantage in questioning the doctor's skill because to sue while undergoing treatment necessarily interrupts the course of treatment" (Massie v Crawford, 78 NY2d 516, 519 [1991]; see also Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 339 [1997]; Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998]; Rizk v Cohen, 73 NY2d 98, 104 [1989]). Unlike a medical malpractice cause of action, a cause of action alleging the breach of a duty to provide medical treatment does not receive the benefit of the tolling provision applicable to medical malpractice claims under the continuing treatment doctrine (Watson v State of New York, 35 AD3d 985, 986 [3d Dept 2006], lv denied 8 NY3d 816 [2007]; Salquerro v State of New York, 212 AD2d 827 [3d Dept 1995]). The concerns underlying application of the doctrine - the desire not to undermine the patient-physician relationship and interrupt possibly curative treatment with a lawsuit - are simply inapplicable where the allegation is a lack of treatment rather than the improper provision of treatment. Accordingly, the date of accrual of the instant claim cannot be determined without analyzing whether the proposed claim sounds in medical malpractice or ordinary negligence.
Conduct is malpractice rather than negligence when it " 'constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician' " (Scott v Uljanov, 74 NY2d 673, 675 [1989], quoting (Bleiler v Bodnar, 65 NY2d 65, 72 [1985]). When " 'the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the hospital's failure in fulfilling a different duty,' the claim sounds in negligence" (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996], quoting Bleiler, 65 NY2d at 73). As succinctly stated by the Appellate Division, Third Department, in Martuscello v Jensen (134 AD3d 4, 11 [3d Dept 2015]:
"The issue devolves to whether medical judgment is required or not; where the underlying claim arises from the failure to follow a medical order previously made or to apply standards of ordinary care, then it is negligence, without regard to whether expert testimony is deemed helpful to the resolution. However, where the conduct involves a standard established by means of the exercise of medical judgment, then it is malpractice" (see also Moore v St. James Health Care Ctr., LLC, 141 AD3d 701 [2d Dept 2016]).
The crux of claimant's allegation in this case is not that DOCCS failed to provide treatment in violation of its duty to do so (Garofolo v State of New York, 135 AD3d 1108, 1109 [3d Dept 2016] [State has a duty to provide reasonable and adequate medical care to inmates in its prison]). Indeed, the records submitted reflect a course of treatment for movant's complaints of wrist pain over a period of more than three years. While movant characterizes his claim as one for medical negligence, the gravamen of the claim is that DOCCS failed to properly diagnose his left wrist injury and provide adequate treatment sooner. Such a claim plainly sounds in medical malpractice which is governed by the 2 1/2-year statute of limitations set forth in CPLR 214-a (see e.g. Ashby v State of New York, UID No. 2016-032-122 [Ct Cl, Hard, J., April 13, 2016]). Notwithstanding the applicability of the continuing treatment doctrine to such claims, movant nevertheless failed to establish that the current motion was filed before the expiration of the statute of limitations.
The law is settled that "[w]here the continuing treatment is provided by someone other than the allegedly negligent practitioner, there must be an agency or other relevant relationship between the health care providers" before subsequent treatment is imputed to the initial provider for tolling purposes (Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 339 [1997] [inner quotation marks and citations omitted]; Ogle v State of New York, 142 AD2d 37 [3d Dept 1988]; Howard v State of New York, 96 AD2d 656 [1983]). Common ownership of the facilities in which treatment is rendered is an insufficient nexus as, taken to its extreme, such a rule would allow patients to keep the statute of limitations period alive as they move among commonly-owned facilities and "deny the health care provider both the repose of the Statute of Limitations . . . and the opportunity to detect and correct any prior negligent care" (Allende, 90 NY2d at 340 [citations omitted]). The records submitted by movant indicate that he was treated in six different prison facilities as well as the Erie County Medical Center. Whether the treatment by the physicians at these facilities was rendered in "relevant association with" the initial treating physician or whether there was a continuing relationship between movant and the initial treating physician following his multiple transfers is unknown (see Ogle v State of New York, 142 AD2d at 40; Howard, 96 AD2d 656 [3d Dept 1983] [continuing treatment doctrine was inapplicable to treatment rendered by different physicians in different prison facilities]; but see Kelly v State of New York, 110 AD2d 1062 [4th Dept 1985] [common ownership of prison facilities was sufficient nexus to impute the subsequent care to the initial provider for tolling purposes]). Under these circumstances, movant's failure to demonstrate some relevant relationship between the allegedly negligent physician and the subsequent treating physicians precludes application of the continuing treatment doctrine. To the extent the Appellate Division, Fourth Department, in Kelly v State of New York, supra, held that common ownership alone was sufficient, the Appellate Division, Third Department in Ogle (142 AD2d at 39) expressly declined to follow (see also Salquerro v State of New York, 212 AD2d 827 [3d Dept 1995]). Accordingly, movant failed to establish that the instant application to file a late claim was made before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the CPLR.
Even if the instant application were timely, however, movant failed to establish reasonable cause to believe that a valid cause of action exists (Fernandez v State of New York, 43 Misc 3d 1221 [A] [Ct Cl 2014]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). In order to establish reasonable cause for a medical malpractice cause of action, expert medical evidence is generally necessary to demonstrate that State personnel deviated from accepted medical standards or practices (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Perez v State of New York, 293 AD2d 918 [3d Dept 2002]; Rosario v State of New York, 8 Misc 3d 1007 [A] [Ct Cl, Scuccimarra, J., 2005] cf. De Paolo v State of New York, 99 AD2d 762 [2d Dept 1984] [claimant established the potential merit of his claim through the submission of the packaging literature of Motrin to demonstrate the use of the drug should have been precluded]; Matter of Caracci v State of New York, 178 AD2d 876 [3d Dept 1991] [expert evidence not required where lay persons could conclude that health care provider should have informed the claimant of the results of her Xray]). Here, even if movant's medical records were in admissible form, which they are not, the Court is unable to discern that a potentially valid cause of action for medical malpractice exists. Whether movant was misdiagnosed and provided inadequate treatment as alleged are not matters within the ordinary experience of lay persons (see Knight v State of New York, 127 AD3d 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 [3d Dept 2015]; McFadden v State of New York, 138 AD3d 1167 [3d Dept 2016], appeal dismissed __NY3d ___ [2016]). Accordingly, movant failed to establish the potential merit of his medical malpractice claim. Inasmuch as it would be a futile exercise to permit litigation of a clearly baseless lawsuit, the application is properly denied on this basis alone (see Matter of Martinez v State of New York, 62 AD3d 1225, 1227 [3d Dept 2009]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
Based on the foregoing, movant's application for leave to file and serve a late claim is denied.
October 19, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
Notice of motion sworn to April 21, 2016;
"Motion for Permission to File a Late Claim" of Emmanuel Janvier dated April 21, 2016 with exhibits;
Affirmation of Thomas R. Monjeau dated June 3, 2016.