Cartagena v. New York City Health & Hosp. Corp.

• Decision Date: 09 February 2012
• Citation: 93 A.D.3d 187,938 N.Y.S.2d 77,2012 N.Y. Slip Op. 00916
• Parties: Zaquira CARTAGENA, an Infant by her Mother and Natural Guardian, Wanderous GILLIAM, Plaintiff–Respondent,Wanderous GILLIAM, etc., Plaintiff, v. NEW YORK CITY HEALTH AND HOSPITALS CORP., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00916

93 A.D.3d 187

938 N.Y.S.2d 77

Zaquira CARTAGENA, an Infant by her Mother and NaturalGuardian, Wanderous GILLIAM, Plaintiff–Respondent,Wanderous GILLIAM, etc., Plaintiff,

v.NEW YORK CITY HEALTH AND HOSPITALS CORP., Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Feb. 9, 2012.

Michael A. Cardozo, CorporationCounsel, New York (Karen M. Griffin and Francis F. Caputo of counsel), for appellant.

Wolf & Fuhrman, LLP, Bronx (Carole R. Moskowitz of counsel), for respondent.

PETER TOM, J.P., RICHARD T. ANDRIAS, JAMES M. CATTERSON, ROLANDO T. ACOSTA, DIANNE T. RENWICK, JJ.

CATTERSON, J.

In this appeal arising from an application to file a late notice of claim, we reiterate that in order for a defendant municipal hospital's medical record to provide actual notice of a claim, the essential facts underlying the claim, including that the plaintiff was injured, must be documented in the defendant's own medical record.Absent such documentation, the defendant in this case would be prejudiced by the nine-year delay in the filing of a notice of claim.

The infant plaintiff was allegedly injured during her mother's labor and delivery as a result of the defendant's medical malpractice.The infant was born on July 18, 1999 at North Central Bronx Hospital (hereinafter referred to as “NCBH”), a New York City Health and Hospitals Corporation(hereinafter referred to as “HHC”) facility.The record reflects that, at three weeks old, the infant was admitted for “shaking” and/or possible seizure disorder to Montefiore Medical Center, another hospital, unaffiliated with HHC.The Montefiore medical records show that the mother told doctors there that the infant had been “shaking since birth.”Those records also show that the mother told doctors the infant had fallen on the floor when she was two-to-three days old; and that there was some family history of epilepsy.According to a diagnosis by a Montefiore doctor when the infant was approximately seven months old, she was found to have a seizure disorder.

Nine years after the infant's birth, on November 21, 2008, the plaintiffs, the infant and mother, moved for leave to serve a late notice of claim on HHC.The plaintiffs alleged that the infant had suffered fetal distress, but that NCBH had allowed mother to labor for 48 hours which had resulted in injury to the infant.In further support of the motion, plaintiffs asserted in an affidavit that the hospital should have performed an emergency cesarean section.The mother stated that when the infant was born “she was purple ... and she would shake all over her body, and her eyes would roll back.”She further stated that she had complained about the infant's condition to the nurses at the time, but they told her there was nothing wrong.Hence, plaintiffs asserted that leave to file a late notice should be granted because they had met their burden of showing that HHC had actual, contemporaneous notice of the facts underlying the claim.

In opposition to the motion, HHC asserted that its hospital's records do not support the plaintiffs' allegations that it allowed prolonged fetal distress, and that, moreover, the plaintiffs failed to attach an expert affidavit establishing a nexus between any alleged complications during labor/delivery and the infant's injuries.More significantly, HHC asserted that the records directly contradict the contention that there was anything wrong with the infant, or that they include any reference to the mother's report of the infant “shaking” or rolling back her eyes.On the contrary, HHC argued that the medical records established that the infant was a healthy newborn.

In reply, the plaintiffs, for the first time, annexed records from Montefiore Medical Center.These records document, inter alia, that three weeks after her discharge from NCBH, the mother told doctors at the unaffiliated hospital that the infant had a “history of seizures since birth.”The plaintiffs annexed the Montefiore records to show that “the infant has throughout her life been documented as having suffered seizures since birth and/or the second day of life.”

The motion court granted the motion to file a late notice of claim pursuant to General Municipal Law § 50–e(5), as to the infant plaintiff, but denied the motion as to the mother as time-barred.The motion court, relying on HHC records of the mother's labor and delivery as well as the mother's affidavit that she had complained about her infant's “shaking” to the NCBH nurses at the time, reasoned that the defendant had “actual notice of the facts underlying the claim.”Hence, the court concluded that the delay in notice would cause HHC only “some prejudice in investigating the claim.”HHC appeals.For the reasons set forth below, we find that HHC had no actual notice of the facts underlying the malpractice claim, and would be substantially prejudiced by receipt of the notice of the infant plaintiff's (plaintiff) claim nine years after the alleged malpractice took place.

Well-established precedent prohibits the plaintiff's use of undocumented purported statements made to unnamed medical personnel to meet her burden of establishing that HHC had actual notice of the facts underlying the claim.Where a court in its discretion, permits a plaintiff to serve a late notice of claim on a municipal entity, it must consider a number of factors.SeeGeneral Municipal Law § 50–e(5).Among the factors that the court considers is whether the entity acquired actual knowledge/had actual notice of the facts underlying the claim within 90 days or a reasonable time thereafter.General Municipal Law § 50–e(5);see alsoWilliams v. Nassau County Med. Ctr.,6 N.Y.3d 531, 535, 814 N.Y.S.2d 580, 581, 847 N.E.2d 1154, 1155(2006).

A municipal hospital corporation has “actual knowledge” of a claim when it creates a contemporaneous medical record containing the essential facts constituting the alleged malpractice.Caminero v. New York City Health & Hosps. Corp. [Bronx Mun. Hosp. Ctr.],21 A.D.3d 330, 332–333, 800 N.Y.S.2d 173, 175(1st Dept.2005).In such a case, a delay in investigation is not prejudicial because the hospital has been in possession of the medical record since the claim arose.SeeMatter of Kelley v. New York City Health & Hosps. Corp.,76 A.D.3d 824, 907 N.Y.S.2d 11(1st Dept.2010);Schwartz v. Montefiore Hosp. & Med. Ctr.,305 A.D.2d 174, 761 N.Y.S.2d 5(1st Dept.2003).

Conversely, merely creating and possessing a medical record where there is nothing in that record to suggest that “the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process,” does not constitute actual knowledge of facts underlying a claim.Williams,6 N.Y.3d at 537, 814 N.Y.S.2d at 583, 847 N.E.2d 1154.It is the plaintiff's burden to show that HHC had actual notice.Matter of Lauray v. City of New York,62 A.D.3d 467, 878 N.Y.S.2d 65(1st Dept.2009).

Thus, to establish that HHC had actual notice of the facts underlying the claim, the plaintiff was obliged to show that its hospital records indicated or noted an injury to the infant plaintiff.See e.g.Medley v. Cichon,305 A.D.2d 643, 644, 761 N.Y.S.2d 666, 667(2d Dept.2003)(medical records reflected that the infant had to be resuscitated at birth and had an Apgar score of 0);Matter of Tomlinson v. New York City Health & Hosps. Corp.,190 A.D.2d 806, 807, 593 N.Y.S.2d 565, 566(2d Dept.1993)(infant's disability, cerebral palsy, was apparent at her birth);cf.Williams,6 N.Y.3d at 537, 814 N.Y.S.2d at 582, 847 N.E.2d 1154(infant's Apgar score of 8 was satisfactory, and there was little to suggest that he would develop epilepsy a year later);Bucknor v. New York City Health &...