Townson v. N.Y.C. Health & Hosps. Corp.

• Decision Date: 01 February 2018
• Docket Number: Index 805103/16,4587N
• Parties: In re John TOWNSON, Petitioner–Respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 401
70 N.Y.S.3d 200

In re John TOWNSON, Petitioner–Respondent,
v.
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent–Appellant.

4587N
Index 805103/16

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

ENTERED: FEBRUARY 1, 2018

Zachary W. Carter, Corporation Counsel, New York (Max O. McCann of counsel), for appellant.

Blyer & Kurland, P.C., Jericho (Steven R. Blyer of counsel), for respondent.

Friedman, J.P., Manzanet–Daniels, Kapnick, Kern, Singh, JJ.

Order and judgment (one paper), Supreme Court, New York County (Joan B. Lobis, J.), entered June 24 2016, granting the petition for leave to serve a late notice of claim, affirmed, without costs.

The issue on this appeal is whether Supreme Court properly exercised its discretion in granting petitioner's application for leave to serve on respondent New York City Health and Hospitals Corporation a notice of claim after the statutory 90 days had expired. We hold that it did.

On December 12, 2014, petitioner John Townson (Townson), an electrician, was treated at Bellevue Hospital's (Bellevue) emergency room for a deep laceration to his right thumb. Townson had cut his thumb while cutting electrical wire with an "electric knife." X-rays taken at the emergency room indicated no broken bones or metal left behind in the wound. Townson's laceration was sutured and he was discharged the same day. He was told he could go back to work in two days.

A few days later, Townson found he could not bend or flex his thumb. Townson never returned to Bellevue, or to any other Health and Hospitals Corporation (HHC) facility for further treatment of his thumb. After a few months, he consulted with Dr. Goldstein, not affiliated with HHC, who recommended physical therapy for his thumb. On March 19, 2015, an MRI of Townson's thumb revealed a torn flexor tendon.

In or about April 2015—less than a month after the 90–day notice of claim period expired—Townson retained an attorney. The attorney proceeded to send three separate letter requests for Townson's medical records to HHC and Bellevue in April, June and July of 2015. After not receiving any reply, Townson's attorney telephoned Bellevue's medical records department in August 2015. By March 2016, Townson still had not received medical records from HHC, and petitioned Supreme Court for leave to file a late notice of claim before the applicable statute of limitations expired.

Supreme Court granted Townson's petition finding that although the medical records did not provide actual notice to HHC

70 N.Y.S.3d 203

because they did not contain the essential underlying facts, Townson adequately pleaded excusable error due to HHC's refusal to forward the requested medical records to Townson. The court also found no substantial prejudice to HHC as a result of the delay because HHC was not "hindered in its attempt to investigate" or defend the claim. HHC has appealed.

Under General Municipal Law § 50–e(1)(a), a notice of claim must be served on a public corporation "within ninety days after the claim arises." However, a court may, in its discretion, permit a plaintiff to serve a notice of claim on a municipal entity after the 90–day period (see Cartagena v. New York City Health & Hosps. Corp., 93 A.D.3d 187, 190, 938 N.Y.S.2d 77 [1st Dept. 2012] ). In making this determination, the court may consider whether there was a reasonable excuse for the delay, actual knowledge on the part of HHC of the essential facts constituting the claim within the 90–day statutory period or within a reasonable time thereafter and substantial prejudice due to the delay ( General Municipal Law § 50–e[5] ; Wally G. v. New York City Health & Hosps. Corp [Metro. Hosp. ], 27 N.Y.3d 672, 675, 37 N.Y.S.3d 30, 57 N.E.3d 1067 [2016] ); Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 535, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006] ; Matter of Kelley v. New York City Health & Hosps. Corp., 76 A.D.3d 824, 825, 907 N.Y.S.2d 11 [1st Dept. 2010] ). None of these enumerated factors is controlling ( Dardzinska v. City of New York, 123 A.D.3d 483, 998 N.Y.S.2d 358 [1st Dept. 2014] ). However, "[w]hile the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance" ( Matter of Rojas v. New York City Health & Hosps. Corp., 127 A.D.3d 870, 872, 6 N.Y.S.3d 294 [2d Dept. 2015] [internal quotation marks omitted] ).

General Municipal Law § 50–e"contains a nonexhaustive list of factors that the court should weigh, and compels consideration of all relevant facts and circumstances" ( Williams, 6 N.Y.3d at 539, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ). Therefore, Supreme Court's decision to grant or deny a motion to serve a late notice of claim is purely a discretionary one so long as the determination is based on the factors set forth in General Municipal Law § 50–e and is supported by record evidence ( Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 465, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016] ; Wally G., 27 N.Y.3d at 675, 37 N.Y.S.3d 30, 57 N.E.3d 1067. Here, when weighing all the relevant facts and circumstances, Supreme Court properly exercised its discretion in allowing service of a late notice of claim, even though not all factors weighed in Townson's favor.

The dissent notes, and it is undisputed, that the medical records do not contain any indication of Townson's torn tendon. However, a hospital's actual knowledge of a potential malpractice claim may be imputed where it possesses medical records that " ‘evince that the medical staff, by its acts or omissions, inflicted an[ ] injury on plaintiff’ " ( Wally G., 27 N.Y.3d at 677, 37 N.Y.S.3d 30, 57 N.E.3d 1067, quoting Williams, 6 N.Y.3d at 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ). HHC has actual knowledge "of a claim when it creates a contemporaneous medical record containing the essential facts constituting the alleged malpractice" ( Cartagena, 93 A.D.3d at 190, 938 N.Y.S.2d 77 ).

The actual knowledge requirement "contemplates ‘actual knowledge of the essential facts constituting the claim,’ not knowledge of a specific legal theory"

70 N.Y.S.3d 204

( Wally G., 27 N.Y.3d at 677, 37 N.Y.S.3d 30, 57 N.E.3d 1067, quoting Williams, 6 N.Y.3d at 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ). Facts found in medical records that merely "suggest" the possibility of malpractice are insufficient, as a plaintiff must demonstrate a hospital's actual knowledge of negligent acts or omissions which result in injury to a plaintiff ( Wally G., 27 N.Y.3d at 677, 37 N.Y.S.3d 30, 57 N.E.3d 1067 ). Supreme Court correctly found that HHC did not acquire actual knowledge of Townson's malpractice claim through the medical records. The dissent concedes that Townson, Bellevue, Dr. Goldstein and the physical therapy practitioners did not learn of Townson's torn tendon until March 19, 2015, after the 90–day period had expired. The dissent argues that Townson's excuse may have been reasonable had he requested leave to file shortly after March 19, 2015, when he learned of the torn tendon. In the dissent's view the delay in serving the notice of claim is not excusable.

We disagree. Townson's claim of malpractice is premised upon a theory that the emergency room failed to evaluate whether internal, connective soft tissue damage resulted from the deep laceration. Townson's counsel, at the time he was retained, which was immediately after Townson had learned of the torn tendon, promptly sent a request to HHC for the medical records to discern the viability of Townson's malpractice claim, but HHC failed to respond on multiple occasions (see e.g. Matter of Rojas, 127 A.D.3d at 872, 6 N.Y.S.3d 294 [the petitioner's one-year delay in seeking leave to file a late notice of claim was reasonable, in light of evidence that HHC failed to respond to "multiple, prompt requests" for the autopsy report during an eight month period]; see also Cassidy v. County of Nassau, 84 A.D.2d 742, 443 N.Y.S.2d 742 [2d Dept. 1981] [delay in seeking leave to file a late notice of claim excused where delay could be attributed to the county's failure to respond to the petitioner's counsel's multiple requests for medical records that were needed to demonstrate the claim] ).

The dissent's reliance upon Alexander v. City of New York, 2 A.D.3d 332, 769 N.Y.S.2d 267 [1st Dept. 2003] ) and Potts v. City of N.Y. Health & Hosps. Corp., 270 A.D.2d 129, 706 N.Y.S.2d 622 [1st Dept. 2000] ) is misplaced. In Alexander we rejected the excuse that the petitioner was awaiting an accident report as liability was not based on the report. Here, HHC's potential liability is necessarily predicated upon the medical records of Townson's treatment at Bellevue. In Potts we found that HHC's delay in responding to counsel's multiple requests did not justify counsel's delay in filing the petition as the hospital records were unnecessary to the petitioner filing a late notice of claim. Here, unlike Potts, Townson needed to fully review the medical records to determine whether HHC failed to examine the soft tissues supporting the thumb.

Moreover, an attorney and client should not be penalized for waiting for medical records to file a complete and accurate notice of claim. Under these circumstances, the motion court providently exercised its discretion...