Cotto v. City of New York
| Decision Date | 06 February 1984 |
| Citation | 471 N.Y.S.2d 865,99 A.D.2d 748 |
| Parties | Jose COTTO, Appellant, v. CITY OF NEW YORK, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Melvin Block, Brooklyn (Willard G. LaFauci, Brooklyn, of counsel), for appellant.
Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Carolyn E. Demarest and Michael Gage, New York City, of counsel), for respondents.
Before LAZER, J.P., and BRACKEN, O'CONNOR and BROWN, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action to recover damages for personal injuries, plaintiff appeals (1) from an order of the Supreme Court, Kings County, dated March 5, 1982, which granted defendants' motion for summary judgment dismissing the complaint for failure to serve a timely notice of claim; and (2) as limited by his brief, from so much of an order of the same court dated December 7, 1982, as, upon reargument, adhered to its original determination.
Appeal from the order dated March 5, 1982, dismissed, without costs or disbursements. That order was superseded by the order dated December 7, 1982, made upon reargument.
Order dated December 7, 1982, reversed insofar as appealed from, without costs or disbursements, order dated March 5, 1982 vacated, defendants' motion denied and complaint reinstated.
The critical issue is whether a sequence of medical treatments initially administered at a City of New York public hospital, followed by referral to a private hospital where the patient is treated for the original complaint, should be characterized as a single continuous course of treatment for purposes of tolling the 90-day notice of claim period required by section 50-e (subd. 1, par. [a] ) of the General Municipal Law and subdivision 2 of section 20 of the New York City Health and Hospitals Corporations Act . We conclude that the treatment received following the referral should be imputed to defendants because of the close nexus between the two hospitals.
The basic facts are undisputed. The alleged acts of malpractice occurred prior to October 22, 1976, at Cumberland Hospital, which was operated and maintained by defendant New York City Health and Hospitals Corporation. Plaintiff initially went to the emergency room complaining of pain in his prostate area. After x-rays were taken, he was instructed to return to the Genito-urinary Clinic for a follow-up examination. His pain persisted despite several more treatments at Cumberland Hospital. On October 22, 1976, his last physical appearance at Cumberland Hospital, plaintiff was directed to go to Brooklyn Hospital.
Brooklyn Hospital was privately owned and operated. The name of the division where plaintiff was admitted, "The Brooklyn Hospital at the Brooklyn-Cumberland Medical Center", suggests the close inter-relationship between the two entities. In fact, the relationship of the two hospitals was evidenced by an agreement executed on September 7, 1966 which allegedly is still in existence. The agreement obligated the City of New York to operate and maintain Cumberland Hospital as a general hospital. Brooklyn Hospital was retained to supervise and provide professional services for medical care at Cumberland Hospital. Brooklyn Hospital also had broad discretion with regard to the establishment of medical policy, the organization and operation of the medical staff and the operation of intern and residency programs at Cumberland Hospital, subject to the supervision of the Commissioner of Hospitals of the City of New York.
Based in part on information contained in his medical records at Cumberland Hospital, plaintiff was admitted to Brooklyn Hospital with a diagnosis of epidymitis orchitis. He was still complaining of the same pain in his prostate area and had swelling in both testicles. He was treated with antibiotics, but his fever continued to rise. The right testicle, which did not respond to treatment, had to be surgically removed. He was discharged from the hospital on November 9 and returned for a follow-up examination on November 22, 1976.
On January 25, 1977, plaintiff served a notice of claim alleging that his condition was misdiagnosed and mistreated at the "Brooklyn-Cumberland Medical Center",...
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