Caminero v. New York City Health and Hospitals Corporation

• Decision Date: 25 August 2005
• Docket Number: 6363.
• Parties: PATRICIA A. CAMINERO, Also Known as PATRICIA PINDER, by Her Mother and Natural Guardian, ANA PATRICIA PINEDA, Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (BRONX MUNICIPAL HOSPITAL CENTER), Respondent.
• Court: New York Supreme Court — Appellate Division

21 A.D.3d 330

800 N.Y.S.2d 173

2005 NY Slip Op 06547

PATRICIA A. CAMINERO, Also Known as PATRICIA PINDER, by Her Mother and Natural Guardian, ANA PATRICIA PINEDA, Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (BRONX MUNICIPAL HOSPITAL CENTER), Respondent.

6363.

Appellate Division of the Supreme Court of the State of New York, First Department.

August 25, 2005.

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered October 22, 2003, which denied plaintiff's motion for an order deeming timely, nunc pro tunc, a notice of claim previously served or for leave to file a late notice of claim, and granted defendant's cross motion to dismiss the complaint,

unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, plaintiff's motion for an order deeming timely the previously served notice of claim granted, defendant's cross motion denied, and the complaint reinstated.

Ana Patricia Pineda gave birth to a daughter, prematurely, on February 8, 1994, at defendant New York City Health and Hospitals Corporation's Bronx Municipal Hospital Center. The infant was diagnosed with respiratory distress syndrome and was transferred to the neonatal intensive care unit, where she was placed on a ventilation system and a pulse oximeter was attached to her foot to monitor the oxygen saturation level in her blood. On February 19, 1994, according to an 11:45 A.M. entry in the infant's progress record, a plastic surgeon was "Called to see the infant for `necrosis' of [right] foot `[secondary] to pulse oximeter placed too tightly around foot by staff,' which was noted today." The doctor's impression after examining her was "Superficial/Deep injury to [right] foot and 5th digit [secondary] to pressure from pulse oximeter."

A 2:00 P.M. entry the same day noted that the neonatologist spoke with the infant's mother and told her that "it is uncertain how this will heal," and that an incident report was filed. Another neonatologist noted, "Baby Pineda found with tight pulse oximeter probe taped around the [right] foot," and described the big toe and forefoot as "dark blue" and the fifth small toe as "very dark, discolored, almost black." The nursing notes for February 20, 1994 indicated that the infant's right foot was blue.

An entry in the Progress Record on March 2, 1994 by a plastic surgeon named Kutlu noted, "[F]orefoot continues to improve . . . [right] 5th toe remains necrotic/non-viable. [Plan] — allow toe to auto-amputate." The summary of the infant's discharge from the hospital on May 23, 1994 contains the following "Addendum": "[Right] small toe amputation [secondary to reduced blood] flow as a result of [oxygen saturation] monitor probe constriction. As per [physical therapist], it will not affect gait when infant starts to walk." Among the final diagnoses listed in the medical record are "gangrene" and "misadventure during medical care."

In March 1998, plaintiff served a notice of claim of negligence and medical malpractice "in the treatment and management of infant claimant's neonatal intensive care on or about February 19, 1994. The exact departures are not fully known to claimants at this time but include failure to monitor and...