Opinion
# 2016-041-028 Claim No. NONE Motion No. M-87966
05-23-2016
GUY WOODARD v. THE STATE OF NEW YORK
WOLF & FUHRMAN, LLP By: Marvin D. Fuhrman, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Belinda A. Wagner, Esq. Assistant Attorney General
Synopsis
Application to file late claim alleging medical negligence is granted where proposed claim alleging that defendant negligently failed to timely perform recommended surgical procedure and otherwise failed to adequately treat condition affecting claimant's prostate, bladder and urethra, together with affidavit of medical expert and claimant's medical records, established the appearance of a meritorious claim.
Case information
| UID: | 2016-041-028 |
| Claimant(s): | GUY WOODARD |
| Claimant short name: | WOODARD |
| 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-87966 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | WOLF & FUHRMAN, LLP By: Marvin D. Fuhrman, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Belinda A. Wagner, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 23, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for permission to file a late medical malpractice claim pursuant to Court of Claims Act § 10 (6). Defendant opposes the motion.
The proposed claim alleges that claimant, while an inmate at Franklin and Queensboro Correctional Facilities, respectively, between November of 2014 and July of 2015, suffered permanent injuries to his prostate, bladder and urethra as a result of defendant's negligent medical treatment of claimant. In particular, the proposed claim alleges that:
"[Defendant] initially dismissed [claimant's] complaints and then failed to follow up with medical recommendations and instructions that [claimant] undergo a transurethral resection of his prostate or TURP despite its being scheduled and then cancelled in and around April 2015, and subsequently . . . [acted negligently in] erroneously and negligently believing claimant had undergone a TURP, and then failing to schedule the performance of a TURP despite the recommendations and orders of urologists who examined claimant . . . and in failing . . . to properly treat the claimants continued complaints of urinary retention and inability to void . . . with proper administration of medications and antibiotics along with failing to provide claimant with proper catheters . . . leading to recurrent urinary retention and infections. As a result claimant can no longer urinate."
Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time 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 earliest date that the claim accrued is on or about November 1, 2014 and the late claim application was made on January 29, 2016. Claimant's proposed cause of action sounding in medical malpractice/negligence is not time-barred by the either the two years and six months limitations period set forth in CPLR 214-a or the three year period described in CPLR 214.
In determining the application, Court of Claims Act 10 (6) provides that:
"[T]he court shall consider, among other 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."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).
Defendant focuses its opposition to the late claim application on claimant's delay in pursuing his claim and on the purported lack of merit of the proposed cause of action.
The application sets forth a reasonable excuse for the relatively modest delay in filing and serving the claim. Claimant's affidavit states that:
"[I]t was not until I consulted with Dr. Arnold Melman [in September 2015] that I learnt for the first time the reason I could not urinate was not because of urinary infections, but because my prostate was now six times its normal size causing infections and damage to my bladder . . . I only recently learnt from Dr. Melman my inability to urinate was caused by the failure to have a TURP performed while incarcerated between November 2014 through July 2015, and that now I need a more extensive surgery to remove my entire prostate and will never be able to urinate normally."
The Court finds that the claimant's inmate medical and hospital records, together with the claimant's post-release medical records submitted with claimant's application, provide defendant with notice of the essential facts and an opportunity to investigate the claim. Defendant will suffer no prejudice in defending the claim.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
Defendant has not offered an affidavit disputing the factual allegations of the proposed claim and the allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
Claimant has provided the unrebutted affidavit of a medical expert, Dr. Arnold Melman, to support his claim of medical negligence. Dr. Melman examined claimant on September 16, 2015 and November 12, 2015, took an extensive history, reviewed the claimant's medical and hospital records and performed "urodynamic flow studies" on claimant. Dr. Melman states with a reasonable degree of medical certainty as follows: 1) The cause of claimant's inability to urinate is claimant's enlarged prostate; 2) it was a departure from good and accepted medical practice for defendant not to have performed a TURP, or similar prostate procedure, between November 2014 and through July 2015; and 3) as a result of this departure from good and accepted medical care, claimant suffers continuing infections and inability to urinate and now requires more risky and invasive surgical treatment (prostatectomy) "with no guarantee he will ever be able to urinate without [catheterization]."
Claimant has established, at this stage of the action, the appearance of a meritorious medical malpractice claim.
Based upon a balancing of the factors set forth in Court of Claims 10 (6), the Court grants the claimant's motion and claimant is directed to file and serve his claim in compliance with §§ 11 and 11-a of the Court of Claims Act within forty-five (45) days of the filing of this decision and order with the Clerk of the Court of Claims.
May 23, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion, filed February 1, 2016; 2. Affirmation of Marvin D. Fuhrman, dated January 29, 2016, and annexed exhibits; 3. Affidavit of Arnold Melman, MD, sworn to January 19, 2016; 4. Affidavit of Guy Woodard, sworn to January 25, 2016; 5. Proposed claim, verified January 25, 2016; 6. Affirmation of Belinda A. Wagner, dated March 1, 2016, and annexed exhibit; 7. Reply Affirmation of Marvin D. Fuhrman, dated March 3, 2016, and annexed exhibit.