Blythe by Blythe v. City of New York
| Decision Date | 14 April 1986 |
| Citation | 501 N.Y.S.2d 69,119 A.D.2d 615 |
| Parties | Denise BLYTHE, an infant, etc., et al., Appellants, v. The CITY OF NEW YORK, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Pegalis & Wachsman, P.C., Great Neck (Steven E. Pegalis, of counsel), for appellants.
Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Larry A. Sonnenshein and Edward F.X. Hart, of counsel), for respondents.
Before GIBBONS, J.P., and THOMPSON, BROWN and WEINSTEIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Kings County (Adler, J.), dated January 28, 1985, which granted the defendants' motion for summary judgment dismissing the complaint and denied the plaintiffs' cross motion for an order dismissing the defendants' fifth and sixth affirmative defenses.
Order affirmed, with costs.
The infant plaintiff developed a seizure disorder, later diagnosed as meningitis, shortly after receiving penicillin and DPT injections at a Department of Health Clinic in Brooklyn on February 19, 1971. The infant was initially brought to the emergency room clinic of Kings County Hospital with complaints of fever and coughing. As her condition worsened, she was admitted to that hospital on February 24, 1971. After the infant's discharge on March 25, 1971, she continued to be treated at Kings County Hospital as well as at the hospital clinic. The infant plaintiff had three subsequent admissions into Kings County Hospital and continued to be treated at the clinic for various conditions associated with her seizure disorder, including postmeningitis and cerebral palsy, through July 14, 1975. According to hospital records, the patient was never seen at Kings County Hospital or any of its clinics subsequent to July 14, 1975.
In March, 1976, the infant plaintiff was admitted to Blythedale Children's Hospital (hereinafter Blythedale), to which the plaintiffs had been referred by Columbia Presbyterian Hospital. She was discharged therefrom on July 30, 1976 with the recommendation that she continue treatment on an out patient basis.
In February 1977 the United Cerebral Palsy School, which the infant had begun attending in the fall of 1976, referred the plaintiffs to the Queens Hospital Center for evaluation and physical therapy. The patient's medical information had previously been referred to the Department of Physical Medicine and Rehabilitation of Long Island Jewish Hospital. However, there had been no medical followup since her discharge from Blythedale. The letter of referral from the United Cerebral Palsy School to Queens Hospital unequivocally stated that the referral was at the family's request due to the convenience of close cooperation between the school and the hospital. The patient was thereafter seen at Queens Hospital, Children's Rehabilitation Service, for physical therapy and evaluation.
The plaintiffs served a notice of claim against the defendants on March 27, 1981 charging them with medical malpractice in the care and treatment of the infant plaintiff which led to severe damage to her central nervous system. The underlying theory of the complaint is that the infant received a continuous course of medical care and treatment from the defendant New York City Health and Hospitals Corporation (hereinafter HHC) which continued at the time of service of the complaint.
The defendants' motion to dismiss the action for failure to timely serve a notice of claim was granted while the plaintiffs' cross motion to dismiss certain of the defendants' affirmative defenses was denied. The court found that the treatments received by the infant at Queens Hospital in 1977 were not continuous to those received at Kings County Hospital inasmuch as plaintiffs had discontinued treatment at the latter institution in order to seek the services of Blythedale.
In opposition to a defendant's motion for summary judgment, it is the plaintiff's burden to...
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