Berger v. State
| Decision Date | 11 March 1991 |
| Citation | 567 N.Y.S.2d 275,171 A.D.2d 713 |
| Parties | Harold BERGER, etc., Respondent, v. The STATE of New York, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Patricia A. Cummings, of counsel), for appellants.
Leahey & Johnson, P.C., New York City (Peter James Johnson, Michael Conforti and Kevin B. Lynch, of counsel), for respondent.
Before BROWN, J.P., and HARWOOD, MILLER and RITTER, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover damages for wrongful death caused by alleged medical malpractice, the defendants appeal from so much of an order of the Court of Claims (Blinder, J.), entered April 17, 1989, as granted that branch of the claimant's cross motion pursuant to Court of Claims Act § 10(6) which was for leave to file a late claim to recover damages for negligence.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the cross motion pursuant to Court of Claims Act § 10(6) which was for leave to file a late claim to recover damages for negligence is denied.
The claimant's wife (hereinafter the decedent) was 76 years old when, on January 8, 1986, she was admitted to the defendant State University of New York, Downstate Medical Center (hereinafter Downstate) for treatment of a recurring and painful back condition. Due to her chronic back pain, the decedent had apparently become addicted to prescription pain medication. On the first day of her hospitalization, a Downstate psychiatrist recommended that the administration of narcotics to the decedent be terminated for a period of 24 hours so that she could be monitored for symptoms of withdrawal. These symptoms did manifest themselves and it was determined by hospital personnel that the decedent should be placed in restraints to control her physical agitation. Additionally, Haldol was administered to treat her withdrawal symptoms.
At some time during the period that the decedent was being restrained, she developed breathing difficulties and became cyanotic. Oxygen was administered and the decedent's color improved. However, within a period of six hours, further complications set in leading to respiratory arrest and by 11:00 P.M. on January 11, 1986, the decedent had passed away. As no autopsy was performed by the defendant hospital, no exact cause of death was ever determined. Possible causes of death listed in the decedent's hospital record included aspiration or a pulmonary embolism.
On March 21, 1986, the claimant was appointed administrator of the decedent's estate. On or about June 16, 1986, 156 days after his wife's death, the claimant served a verified notice of intention to file a claim as required by Court of Claims Act § 10. The instant action was commenced on or about July 31, 1986, with the service of a verified claim advancing three causes of action. The first was to recover damages for wrongful death based on the defendants' alleged medical malpractice. The second cause of action sounded in negligence and medical malpractice and sought to recover damages, inter alia, for conscious pain and suffering. In the third cause of action, the claimant sought recovery for loss of consortium as a result of the death of his wife.
The defendants the State of New York and Downstate interposed a verified answer generally denying the allegations advanced in the claimant's verified claim. In addition the defendants asserted as a first affirmative defense that the claimant's second cause of action was untimely pursuant to Court of Claims Act § 10(3) as the claimant had not served a notice of intention to file this negligence and malpractice claim within 90 days after the accrual of his cause of action. As a second affirmative defense the defendants asserted that the claimant's third cause of action did not state a cause of action upon which relief could be granted as a claim of loss of consortium did not lie in a wrongful death action against the State. Thereafter, the defendants moved to dismiss the claimant's second and third causes of action for the above-stated reasons.
The claimant opposed the defendant's motion arguing, inter alia, that the tolling provisions of Court of Claims Act § 10(2) pursuant to which the wrongful death cause of action was timely, should also be applicable to the second and third causes of action. However, in the alternative, and possibly recognizing the merit in the defendants' reply argument that the wrongful death toll was applicable only to wrongful death causes of action (see, Barrett v. State of New York, 161 A.D.2d 61, 560 N.Y.S.2d 302; DeFilippis v. State of New York, 157 A.D.2d 826, 550 N.Y.S.2d 728), on November 16, 1988, the claimant made the instant cross motion for leave to file a late claim.
In support of the cross motion the claimant argued that pursuant to the relevant considerations mandated by Court of Claims Act § 10(6), he should be permitted to file a late claim. Furthermore, he asserted that his proposed amended verified claim should be construed as sounding in negligence (in which case it would be timely pursuant to the three-year Statute of Limitations contained in CPLR 214) and not in medical malpractice (in which case it would be time-barred pursuant to the two-and-one-half year medical malpractice Statute of Limitations set forth in CPLR 214-a). The claimant's proposed amended verified claim was virtually identical to his original verified claim except that it alleged only negligence and omitted the allegations of medical malpractice contained in the original claim, and the basis of the alleged negligence revolved around the defendants' use of body restraints. The second cause of action set forth in the amended claim, however, was to recover damages for pain and suffering predicated upon both negligence and malpractice.
In opposition the defendants argued that the amended claim still sounded in medical malpractice and that the claimant's attempts to characterize it as sounding in general negligence was but a "ploy" to circumvent the bar of the two-and-one-half year Statute of Limitations applicable to medical malpractice actions.
The court granted the defendants' motion to dismiss the second and third causes of action set forth in the original claim, but simultaneously granted the claimant leave to serve and file his amended claim. Although acknowledging that any claims sounding in medical malpractice were time-barred, the court nevertheless granted the claimant's cross motion "as to a cause of action predicated on general negligence". The defendants now appeal from so much of the order as granted the claimant's cross motion to the extent indicated. We reverse the court's order insofar as appealed from.
Pursuant to Court of Claims Act § 10(6), a claimant who has failed to file a timely claim or notice of intention to file a claim may, nevertheless, in the discretion of the court (see, Hansen v. State of New York, 135 A.D.2d 606, 522 N.Y.S.2d 465), be permitted to file a late claim, but only if the...
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