Opinion
# 2020-058-027 Claim No. NONE Motion No. M-95081
03-06-2020
WILLIAM SHOULTS v. STATE OF NEW YORK
Shanley Law Offices By: P. Michael Shanley, Esq. Hon. Letitia James, Attorney General By: Joseph D. Callery, Esq., Assistant Attorney General
Motion for permission to serve and file a late claim alleging a cause of action for medical malpractice denied.
Synopsis
Motion for permission to serve and file a late claim alleging a cause of action for medical malpractice denied.
Case information
| UID: | 2020-058-027 |
| Claimant(s): | WILLIAM SHOULTS |
| Claimant short name: | SHOULTS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-95081 |
| Cross-motion number(s): | |
| Judge: | |
| Claimant's attorney: | Shanley Law Offices By: P. Michael Shanley, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Joseph D. Callery, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 6, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant William Shoults seeks permission to serve and file a late claim alleging a cause of action for medical negligence and/or medical malpractice. Specifically, Movant alleges that, on or about December 2, 2018, he was admitted as a patient at SUNY Upstate Medical University Hospital ("Upstate") for blood clotting in his right leg/foot. After undergoing surgeries, Movant was discharged from Upstate on or about December 23, 2018. Movant claims that he was advised that he was being discharged "as the result of Medicaid allegedly refusing to pay for any additional time as an inpatient at [Upstate]," which he avers "was incorrect" (Affidavit of P. Michael Shanley, Esq., in Supp of Mot for Leave to Serve a Late Notice of Claim, Ex A ¶ 4). Movant contends that, as a result of this alleged premature discharge, he "suffered severe physical injuries requiring medical care and treatment and has suffered mental anguish, as well as being upset and depressed due to his injuries as well as having to incur medical expenses for the treatment and care of his injuries" (id. ¶ 8). Defendant opposes the motion.
Movant mistakenly states that he is seeking to file "a late Notice of Claim" (Affidavit of P. Michael Shanley, Esq., in Supp of Mot for Leave to Serve a Late Notice of Claim, ¶ 2). The Court notes that, in Court of Claims' practice, there are two documents, a Notice of Intention to File a Claim and a Claim. There is no "Notice of Claim." However, the Court will consider the motion as if it were properly titled as a motion seeking late claim relief as the motion papers specifically refer to Court of Claims Act § 10 (6) and the parties ostensibly treated the motion as one seeking permission to file a late claim. Thus, the Court considers the document entitled "Notice of Claim" that is attached to the motion as the proposed claim. --------
Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 [3], [3-b]).
The Court has discretion to permit the filing of a late claim pursuant to Court of Claims §10 (6) provided that the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed claim alleges a cause of action for medical malpractice which carries a statute of limitations of two years and six months (see CPLR 214-a) and medical negligence which carries a three-year statute of limitations (see CPLR 214; Dixon v State of New York, UID No. 2014-038-556 [Ct Cl, DeBow, J., Dec. 15, 2014]). Because it is undisputed that the proposed claim accrued on December 23, 2018 and the instant application was made on December 19, 2019, the proposed claim is timely.
Upon satisfaction that the proposed claim is timely, the Court will consider six statutory factors set forth in Court of Claims Act § 10 (6) as well as other relevant factors in determining whether to grant the late claim (see Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Although the movant need not satisfy every statutory factor enumerated in Court of Claims Act § 10 (6) (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]), the ultimate burden rests with the movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797, 804 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant contends that the late filing of his claim is excusable because he "did not know of the statutory requirements placed on Claimants pursuant to the Court of Claims Act" (Affidavit of P. Michael Shanley, Esq., in Supp of Mot for Leave to Serve a Late Notice of Claim, ¶ 12). However, it is well settled that ignorance of the law is not a sufficient excuse warranting late claim relief (see Matter of Robinson v Stat e of New York, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Modern Transfer Co. v State of New York, 37 AD2d 756, 756 [4th Dept 1971]). Accordingly, this factor weighs in Defendant's favor. Nevertheless, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, 55 NY2d at 981).
The next three factors to be addressed--whether Defendant had notice of the essential facts constituting the Claim, whether Defendant had an opportunity to investigate the circumstances underlying the Claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant--are interrelated and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Movant merely states that Defendant "had notice of the facts underlying this claim, and has had an opportunity to investigate the facts underlying the proposed claim, eliminating the risk of prejudice." (Memo of Law, at 2, Notice of Mot, attach). This conclusory statement merely tracks the statutory language set forth in Court of Claims Act § 10 (6) and is not buttressed by any facts or documentary evidence showing Defendant's awareness of the facts giving rise to the Claim (see generally Hassan v State of New York, UID No. 2019-015-194 [Ct Cl, Collins, J., Oct. 21, 2019]). Consequently, these factors militate against granting the motion.
The fifth factor to be considered is whether Movant has another remedy available. Movant argues, and Defendant does not dispute, that Movant does not have an alternative remedy. Consequently, this factor also weighs in Movant's favor.
The last and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for "it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the [movant's] motion" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011] [internal quotation marks and citation omitted]). It is the movant's burden to show that there is reasonable cause to believe that a valid cause of action exists and that the claim is not patently groundless, frivolous or legally defective (see Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Although this standard places a heavier burden upon a party who has filed late, it does not require a movant to definitively establish the merit of the claim or to overcome all legal objections before the Court will permit the filing of a late claim (see Matter of Santana, 92 Misc 2d at 11-12).
In order to maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, "a party may proceed upon a theory of simple negligence, or upon the more particularized theory of medical malpractice" (Hale v State of New York, 53 AD2d 1025, 1025 [4th Dept 1976], lv denied 40 NY2d 804 [1976]). "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts" (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]). Stated differently, "[w]hen the duty owing to the plaintiff by the defendant arises from the physician-patient relationship or is substantially related to medical treatment, the breach thereof gives rise to an action sounding in medical malpractice as opposed to simple negligence" (Fox v White Plains Med. Ctr., 125 AD2d 538, 538 [2d Dept 1986]). Nevertheless, regardless of "[w]hether the claim is grounded in negligence or medical malpractice, '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case'"(Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; Trottie v State of New York, 39 AD3d 1094, 1095 [3d Dept 2007]).
Here, the proposed claim alleges that Movant was prematurely discharged from Upstate. Movant is essentially claiming that Defendant, through Upstate, was negligent in releasing him from the hospital prior to the completion of his treatment and/or recovery. A cause of action premised on a premature discharge of a patient from the care of a medical professional sounds in medical malpractice (see e.g. Severino v Weller, 148 AD3d 272, 273-275 [1st Dept 2017]; Ingutti v Rochester Gen. Hosp., 145 AD3d 1423, 1424-1425 [4th Dept 2016]; De Wanger v St. Vincent's Hosp. & Med. Ctr. of N.Y., 118 AD2d 412, 412 [1st Dept 1986]; Legall v State of New York, 10 Misc 3d 800, 803 [Ct Cl 2005]). Consequently, to establish the merit of this Claim, Movant was required to submit expert proof establishing that Defendant deviated from the accepted standard of care in discharging Movant and that such early discharge proximately caused Movant's injuries (see e.g. Severino, 148 AD3d at 274 ["(the) plaintiffs' experts opined that (the) defendants departed from accepted standards insofar as they failed to identify several red flags of an adverse morphine reaction and, as a result, prematurely discharged (the plaintiff) to the surgical floor, where he was no longer under continuous pulse oximetry monitoring"]; Vallone v Saratoga Hosp., 141 AD3d 886, 888 [3d Dept 2016] [in case premised on premature discharge from the defendant hospital, the plaintiff patient presented expert testimony "that (the) plaintiff was improperly discharged without an appropriate assessment and treatment plan, and that (the) defendant should have transferred him to a burn center" and, as a result thereof, the duration and severity of plaintiff's pain were prolonged by the premature discharge]).
Movant has not provided the affidavit of a medical expert in support of his allegations of medical negligence and/or malpractice nor has Movant even provided any medical records showing that he suffered any injury at all as a result of the alleged premature discharge from Upstate (see Matter of Robinson, 35 AD3d at 950 [affirming Court of Claims' denial of motion for permission to file a late claim for medical malpractice where the movant "provided no medical records or expert medical proof to support his allegations of medical malpractice"]; Scott v State of New York, UID No. 2019-040-008 [Ct Cl, McCarthy, J., Jan. 25, 2019] ["(i)n the absence of Movant's medical records, the merit of any allegations of medical malpractice in his motion papers is not established. Further, in the absence of an expert affidavit, there is no support for his contention that Defendant committed medical malpractice"]). Consequently, the Court concludes that the proposed claim, as presented, lacks the appearance of merit.
Therefore, upon balancing all of the factors in the Court of Claims Act section 10 (6), it is hereby:
ORDERED that Motion No. 95081 seeking permission to serve and file a late Claim is denied.
March 6, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims The Court has considered the following in deciding this motion: (1) Notice of Motion dated December 19, 2019. (2) Affidavit of P. Michael Shanley, Esq., in Support of Motion for Permission to File Late Notice of Claim, sworn to on December 19, 2019, with attachments. (3) Affirmation of Joseph D. Callery, Esq., Assistant Attorney General, dated February 24, 2020.