Smith v. Cooper

• Decision Date: 01 May 2019
• Docket Number: 2018–03192,Index 56422/17
• Citation: 172 A.D.3d 776,99 N.Y.S.3d 435
• Parties: Jack SMITH, et al., Appellants, v. Howard A. COOPER, etc., Defendant, Westchester Medical Center, Respondent.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 776

99 N.Y.S.3d 435

Jack SMITH, et al., Appellants,

v. Howard A. COOPER, etc., Defendant,Westchester Medical Center, Respondent.

2018–03192

Index 56422/17

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

Argued - January 24, 2019

May 1, 2019

Arye, Lustig & Sassower, P.C., New York, N.Y. (Jay A. Wechsler and Mitchell J. Sassower of counsel), for appellants.

Heidell, Pittoni, Murphy & Bach, LLP, White Plains, N.Y. (Daniel S. Ratner of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The plaintiff Jack Smith (hereinafter the plaintiff) had end-stage kidney disease and kidney failure and was awaiting a kidney transplant. On October 30, 2015, the plaintiff presented to the defendant Westchester Medical Center (hereinafter WMC) for the transplant. As part of the work-up for the transplant, the plaintiff had a chest X–Ray performed, which revealed a pericardial effusion. A pericardiocentisis was performed at WMC to drain the fluid around the plaintiff's heart. The plaintiff's heart was punctured during the procedure, which required an emergency sternotomy on October 31, 2015, to repair the plaintiff's right ventricle.

The plaintiff was discharged from WMC on November 5, 2015, and received follow-up cardiac care at WMC for his pericardial effusion until March 16, 2016. The plaintiff continued treatment at WMC for his kidney condition and pre-transplant evaluations, which included brief cardiovascular evaluations through 2016 and into 2017. The plaintiff ultimately received a kidney transplant in September 2017.

On January 12, 2017, the plaintiff, and his wife suing derivatively (hereinafter together the plaintiffs), filed a notice of claim against, among others, WMC, alleging medical malpractice based on the negligent performance of the pericardiocentisis. On April 24, 2017, the plaintiffs commenced this action to recover damages for medical malpractice. WMC moved for summary judgment dismissing the complaint insofar as asserted against it pursuant to General Municipal Law §§ 50–d and 50–e for failure to file a timely notice of claim. The Supreme Court granted WMC's motion, and the plaintiffs appeal.

A medical malpractice action "accrues on the date when the alleged original negligent act or omission occurred" ( Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291, 295, 670 N.Y.S.2d 169, 693 N.E.2d 196 ). A notice of claim against a municipal corporation must be served within 90 days of the time the claim arises (see General Municipal Law § 50–e[1] ). However, the continuous treatment doctrine may toll the 90–day period within which the notice of claim must be filed (see Matthews v. Barrau, 150 A.D.3d 836, 837, 55 N.Y.S.3d 282 ). The doctrine applies when the course of treatment that includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint (see Young v. New York City Health & Hosps. Corp., 91 N.Y.2d at 296, 670 N.Y.S.2d 169, 693 N.E.2d 196 ; Chestnut v....