Rechenberger v. Nassau County Medical Center
| Decision Date | 01 July 1985 |
| Citation | 490 N.Y.S.2d 838,112 A.D.2d 150 |
| Parties | Edward RECHENBERGER, et al., Appellants, v. NASSAU COUNTY MEDICAL CENTER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Blume, Easton & Clark, Levittown (Alan W. Clark, Levittown, of counsel), for appellants.
Edward G. McCabe, County Atty., Mineola (Kathryn Driscoll Hopkins, Mineola, of counsel; Arthur Simuro on brief), for respondent.
Before LAZER, J.P., and BRACKEN, RUBIN and EIBER, JJ.
MEMORANDUM BY THE COURT.
In a proceeding for leave to serve a late notice of claim, petitioners appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County, dated January 26, 1984, as denied that branch of their motion which sought leave to serve a late notice of claim.
Order reversed insofar as appealed from, as a matter of discretion, without costs or disbursements, and that branch of petitioner's motion which sought leave to serve a late notice of claim granted. Petitioners' proposed notice of claim is deemed served.
On May 3, 1982, petitioner Edward Rechenberger was admitted to the Nassau County Medical Center where he was diagnosed as suffering from intertrochanteric and subtrochanteric fractures to his right hip. The following day, Mr. Rechenberg underwent an operation during which surgical hardware was implanted in his right hip. On May 18, 1982, 14 days after the operation, Mr. Rechenberger was walking with the aid of a walker provided by the hospital in his hospital room when his right leg gave way. X-rays were taken and Mr. Rechenberger was informed that a second operation was necessary. During the second operation, which was performed on May 25, 1982, it was determined that the surgical hardware implanted during the first operation had failed, and required new surgical hardware which was inserted at that time. Mr. Rechenberger was discharged from the hospital on June 19, 1982. Thereafter, Mr. Rechenberger visited the orthopedic clinic at the Nassau County Medical Center for therapy for his right hip on June 28, 1982, July 26, 1982, August 23, 1982 and September 20, 1982.
On January 19, 1983, Mr. Rechenberger was examined by a physician on behalf of his employer's Workers' Compensation carrier. During that examination, Mr. Rechenberger was advised, for the first time, that the surgical hardware implanted in his right hip during the course of the May 4, 1982 operation was inserted improperly, thereby resulting in the second operation and Mr. Rechenberger's continued disability. On February 16, 1983, Mr. Rechenberger retained a law firm to commence a medical malpractice action against the Nassau County Medical Center. On or about February 25, 1983, petitioners' attorney contacted the hospital and requested copies of all of Mr. Rechenberger's records. The records were not received until July 28, 1983. In August 1983, Mr. Rechenberger, under the care and supervision of his own physician, underwent a third operation to remove the surgical hardware in his hip which had caused a massive infection. This third operation was performed at Mid-Island Hospital. Mr. Rechenberger has since been informed that a fourth operation will be necessary.
On or about October 24, 1983, petitioners moved, inter alia, for an order permitting the service of a late notice of claim against the Nassau County Medical Center. Special Term, in its discretion, denied petitioners' application on the ground that no reasonable explanation was offered for the delay in serving a notice of claim and there was no indication that the hospital had actual notice of petitioners' claim within 90 days after the claim arose, or within a reasonable time thereafter. Based upon our review of the record, we disagree with Special Term's determination and accordingly reverse.
At the outset, it is significant to note that petitioners' instant application was not barred by the Statute of Limitations (see, Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331). Mr. Rechenberger was discharged from the hospital on June 19, 1982; however, he continued to regularly visit the hospital's orthopedic clinic for therapy for his right hip until September 20, 1982. Thus, under the continuous treatment doctrine (Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777), the Statute of Limitations period of one year and 90 days (General Municipal Law §§ 50-e, 50-i) did not begin to run until September 20, 1982 and did not expire until December 19, 1983. Since pe...
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