Caracci v. State, 81743
| Decision Date | 28 April 1994 |
| Docket Number | No. 81743,81743 |
| Parties | , 90 Ed. Law Rep. 1175 Corinna CARACCI, Appellant, v. STATE of New York, Respondent. (Claim) Supreme Court, Appellate Division, Third Department |
| Court | New York Supreme Court — Appellate Division |
Bower & Gardner (Howard R. Cohen, of counsel), New York City, for appellant.
G. Oliver Koppell, Atty. Gen. (Andrea Oser, of counsel), Albany, for respondent.
Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ.
MIKOLL, Justice Presiding.
Appeal from an order of the Court of Claims (Hanifin, J.), entered June 21, 1993, which, upon reconsideration, adhered to its prior decision, inter alia, granting the State's cross motion for summary judgment dismissing the claim.
In August 1987, claimant became a student at the State University of New York College at Oneonta (hereinafter SUCO) in Otsego County. On September 14 of that year claimant visited the Student Health Center at SUCO (hereinafter the Center) where she was examined for chest pain, given some Advil and a prescription, and told to return if she did not feel better. Claimant states that upon returning to the Center that evening in accord with the Center's advice, she found that it was closed; she then called the emergency number posted on the Center door. A person answering the call identified herself as a nurse and advised claimant to go to Aurelia Osborn Fox Memorial Hospital (hereinafter the hospital). The hospital examined her, took tests including a chest X ray, informed her that she had pleurisy, prescribed Motrin and advised her to return if she did not feel better in two or three days. She returned to the hospital the next day and was again informed that she had pleurisy. The hospital prescribed antibiotics and its physician gave her a written one-week excuse from school so she could return to her home on Staten Island for treatment.
The report of the hospital radiologist, dated September 15, 1987, indicated that there was an abnormal mass in claimant's chest and a CT scan was recommended to rule out, inter alia, the presence of cancer. This report was forwarded to the Center and placed in claimant's medical record. Claimant visited the Center on March 2, 1988 for a routine sports physical and in February 1989 for treatment of a cold and for another sports physical. She visited the Center again on May 5, 1989 after discovering a lump on the left side of her neck. A radiologist's report of her chest X ray taken on the May 5, 1989 visit noted the likely possibility that claimant had Hodgkin's disease. The physician at the Center then informed her that she possibly had lymphoma or Hodgkin's disease. She returned to her Staten Island home for a biopsy and treatment.
In her claim against the State filed on May 8, 1990, claimant alleges that the Center's failure to inform her of the September 1987 radiology report caused delay in the discovery of her Hodgkin's disease, that the progression of the disease for a further 20 months made it necessary for her to receive chemotherapy treatments as well as radiation therapy, and decreased her chances of surviving. Claimant also moved for leave to file a late notice of claim, which the Court of Claims granted upon a finding that the State would not be substantially prejudiced. A new claim was then filed.
The Court of Claims next granted the State's motion to reargue claimant's application to file a late claim and, upon reargument, adhered to its original decision. The State appealed that order to this court, contending that the court erred because claimant did not furnish an expert's affidavit of merit. In affirming, we found that a claim based on ordinary negligence was stated as well as one on medical malpractice, which was supported by the radiologist's reports (178 A.D.2d 876, 577 N.Y.S.2d 925).
Subsequently, claimant moved for partial summary judgment on the issue of liability and the State cross-moved for summary judgment dismissing the claim. The Court of Claims ruled that the medical malpractice claim was precluded by the Statute of Limitations and that the Center staff owed no duty to claimant that would sustain a claim in ordinary negligence because the Center played no part in her treatment. The court then denied claimant's motion, granted the State's cross motion and dismissed the claim. Claimant moved to renew her motion for partial summary judgment but only as to the ordinary negligence claim. The court granted renewal but adhered to its...
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