Opinion
Index 56422/2017
01-11-2018
JACK SMITH and MARILYN SMITH Plaintiffs, v. HOWARD A. COOPER, M.D., and WESTCHESTER MEDICAL CENTER, Defendants.
Unpublished Opinion
PRESENT: HON. WILLIAM J. GIACOMO, J.S.C.
DECISION & ORDER
WILLIAM J. GIACOMO JUDGE.
In an action to recover damages for medical malpractice, the defendant Westchester Medical Center moves to dismiss the complaint, pursuant CPLR 3211 or for summary judgment, pursuant to CPLR 3212, on the ground that plaintiffs failed to timely file a notice of claim pursuant to General Municipal Law 50-d & 50-e:
Papers Considered
1. Notice of Motion/Affirmation of Thomas M. Grove Esq./Exhibits A-G;
2. Affirmation in Opposition of Jay A. Wechsler, Esq./Exhibits A-E;
3. Reply Affirmation of Thomas M. Grove, Esq./Exhibits H-K.
Factual and Procedural Background
Plaintiffs commenced this action against Howard A. Cooper, M.D. and Westchester Medical Center ("WMC") for medical malpractice, lack of informed consent, and loss of consortium, with the filing of a summons and complaint on April 28, 2017.
The complaint alleges that on October 30, 2015, while plaintiff Jack Smith was a patient at WMC he underwent the draining of a pericardial effusion by pericardiocentesis during which his heart was punctured requiring an emergency sternotomy and repair of the right ventricle on October 31, 2015.
Plaintiffs served a notice of claim upon WMC on January 12, 2017. The notice of Haim averts that the nature of the claim is for personal injuries as a result of the medical malpractice and negligence in performing a pericardiocentesis for removal of a pericardial effusion at WMC The incident which gives rise to the cause of action, occurred on October 30, 2015, at WMC, when the plaintiff was undergoing a pericadiocentesis and his heart was punctured requiring an emergency sternotomy and repair of the right ventricle. The notice of claim alleges that the injured plaintiff had continuous treatment at WMC from the date of the incident to the present. The damages claimed include injuries related to the puncture of the heart, the sternotomy and repair, which otherwise would not have been necessary, severe and protracted pain, and extended delay of a kidney transplant resulting in continued dialysis.
WMC moves to dismiss the complaint, pursuant to CPLR 3211, or for summary judgment, pursuant to CPLR 3212, on the ground that plaintiffs failed to file a timely notice of claim pursuant to General Municipal Law 50-d and 50-e.
WMC argues that treatment was rendered to plaintiff from October 30, 2015, through November 6, 2015. Specifically, the pericardiocentesis was performed on October 30, 2015, the sternotomy was performed on October 31, 2015, and the plaintiff was discharged on November 6, 2015. The notice of claim was not served until January 12, 2017, without leave of court, which is 343 days after the expiration of the ninety-day (90) time period to file a notice of claim. Moreover, WMC argues that the one year and ninety-day (90) statute of limitations expired on February 4, 2017 prior to the commencement of this action.
WMC further argues that the continuous treatment doctrine is not applicable because the malpractice claims involve cardiac care and the subsequent treatment sought by plaintiff was for a kidney transplant. However, even if the continuous treatment doctrine applies, WMC argues that the notice of claim is still untimely. Plaintiff's cardiac related treatment at the Kidney Transplant Center occurred on December 16, 2015, March 3, 2016, and March 16, 2016, after which there was no further cardiac treatment. WMC argues that plaintiff's treatment after March 16, 2016, was unrelated to any course of treatment with respect to the condition that gave rise to the lawsuit. Thus, even if the continuous treatment doctrine applies, the plaintiffs would have had to file a notice of claim by June 14, 2016, or were required to make a motion to serve a late notice of claim by June 14, 2017, which they failed to do.
In opposition, plaintiff argues that the continuous treatment doctrine is applicable to toll the notice of claim requirement. Plaintiffs argue that the injured plaintiff was a kidney patient whose cardiac treatment was incidental to his kidney treatment. Plaintiffs argue that when the injured plaintiff presented to WMC on October 30, 2015, it was part of a work-up for an upcoming kidney transplant. At that time, a chest x-ray revealed fluid around his heart requiring a pericardiocentisis to drain the fluid. Plaintiffs argue that the pericardiocentisis was negligently performed, which resulted in the need for an emergency sternotomy. As a result, plaintiffs claim that the injured plaintiff lost the opportunity for a donor kidney, had to wait over a year and a half for the transplant, and was subjected to unnecessary and lengthy dialysis. Plaintiffs argue that the follow-up treatment was at WMC's transplant center occurred as recently as April 27, 2017, where plaintiff Jack Smith was evaluated for a kidney transplant. Thus, plaintiffs argue that the
Discussion
A notice of claim against a municipal corporation must be served within 90 days of the time the claim arises (General Municipal Law § 50-e [1]; Allende v. New York City Health & Hosps. Corp., 90 N.Y.2d 333 [1997)). A medical malpractice action accrues on the date when the alleged original negligent act or omission occurred (see Young v. New York City Health & Hasps. Corp., 91 N.Y.2d 291 [1998)).
The doctrine of continuous treatment, however, may toll the 90-day period within which a notice of claim must be filed under GML -50-e (see Davis v. City of New York 38 N.Y.2d 257, 259 [1975]). The toll applies when continuous treatment is sought "for the same illness, injury or condition which gave rise to the said act, omission or failure" originally complained of (CPLR 214-a; Plummer v. NY. City Health & Hasps. Corp., 98 N.Y.2d 263 [2002]; McDermott v. Torre, 56 N.Y.2d 399, 407 [1982)). Essential to the application of the continuous treatment doctrine is "a course of treatment established with respect to the condition that gives rise to the lawsuit" (Nykorchuck v. Henriques, 78 N.Y.2d 255, 258-259 [1991)). "Routine examination of a seemingly healthy patient, or visits concerning matters unrelated to the condition at issue giving rise to the claim, are insufficient to invoke the benefit of the doctrine" (Plummer v. NY. City Health & Hasps. Corp., 98 N.Y.2d at 268).
Here, defendants demonstrated that no further cardiac related treatment occurred after March 16, 2016. The medical records from WMC demonstrate that the pericardiocentesis was performed on October 30, 2015, and the sternotomy was performed on October 31, 2015. Plaintiff was discharged on November 6, 2015. Thereafter, plaintiff presented at the Kidney Transplant Center on December 16, 2015, for a postsurgical follow up. On March 3, 2016, plaintiff presented at the transplant center for pericardial effusion in furtherance of his preoperative cardiovascular examination. An echocardiogram was ordered to reassess the pericardial effusion. The echocardiography was performed on March 16, 2016. Through the submission of medical records, defendants demonstrated that any subsequent cardiac treatment after March 16, 2016, was in furtherance of plaintiff's "pre-transplant evaluation for end stage renal disease".
In opposition plaintiffs failed to raise a triable issue of fact. Plaintiffs' argument that the evaluation of plaintiff Jack Smith on April 27, 2017, at WMC's transplant center for a kidney transplant fails to establish continuous treatment.
Here the continuous treatment doctrine tolled the statute of limitations until March 16 2016 Therefore plaintiffs were required to file a notice of claim within 90 days of that date or June 14 2016. Plaintiffs' service of a late notice of claim on January 12, 2017, without leave of court is a nullity (see Maxwell v. City of New York, 29 A.D.3d 540 [2d Dept 2006]- Santiago v. City of New York, 294 A.D.2d 483 [2d Dept 2002]). Moreover, plaintiffs failed 'to seek leave of court to file a late notice of claim within one year and ninety days after accrual of the claim (see General Municipal Law -50-I; CPLR 217-a; see Daniel J. v. New York City Health & Hasps. Corp., 77 N.Y.2d 630 [1991]; Maxwell v. City of New York, 29A.D.3d540).
Accordingly, WMC's motion to dismiss the complaint pursuant to General Municipal Law 50-d and 50-e, and CPLR 3211 and 3212, for failure to file a timely notice of claim is GRANTED.