Wally G. v.

• Decision Date: 18 September 2014
• Citation: 120 A.D.3d 1082,2014 N.Y. Slip Op. 06241,992 N.Y.S.2d 232
• Parties: WALLY G., an Infant by his Mother and Natural Guardian, YOSELIN T., Plaintiff–Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (METROPOLITAN HOSPITAL), Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 1082
992 N.Y.S.2d 232
2014 N.Y. Slip Op. 06241

WALLY G., an Infant by his Mother and Natural Guardian, YOSELIN T., Plaintiff–Appellant,
v.
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (METROPOLITAN HOSPITAL), Defendant–Respondent.

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

Sept. 18, 2014.

The Fitzgerald Law Firm, P.C., Yonkers (Mitchell Gittin of counsel), for appellant.

[992 N.Y.S.2d 233]

Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for respondent.

TOM, J.P., FRIEDMAN, ACOSTA, ANDRIAS, RICHTER, JJ.

Order, Supreme Court, New York County (Douglas E. McKeon, J.), entered on or about November 21, 2012, which granted plaintiff's motion to reargue, and upon reargument, adhered to its prior order, entered on or about January 26, 2012, denying plaintiff's motion for leave to serve a late notice of claim, and granting defendant's cross motion to dismiss the complaint, affirmed, without costs. Appeal from the January 26, 2012 order, dismissed, without costs.

In this action for medical malpractice, in which the infant plaintiff seeks to recover for injuries he suffered after being born at 27 weeks' gestation, the motion court considered the pertinent statutory factors and properly exercised its discretion in denying plaintiff's motion (General Municipal Law § 50–e[5] ). The infant plaintiff's mother's excuses that she was unfamiliar with the requirement that she file a notice of claim, and that she was unaware that her son's injuries were caused by defendant Health and Hospital Corporation's (HHC) malpractice, are not reasonable. Nor is her attorney's assertion that he waited to make the motion until approximately three years and ten months after filing the untimely notice of claim because he needed to receive the medical records from HHC ( see Basualdo v. Guzman, 110 A.D.3d 610, 610, 973 N.Y.S.2d 621 [1st Dept.2013] ).

Further, the medical records demonstrate that the infant plaintiff's condition and prognosis are consistent with his premature birth and do not suggest any injury attributable to the hospital staff's malpractice ( see Torres v. New York City Health & Hosps. Corp. [Lincoln Hosp.], 101 A.D.3d 463, 463, 957 N.Y.S.2d 13 [1st Dept.2012], lv. denied21 N.Y.3d 860, 2013 WL 3198287 [2013] ). Moreover, plaintiff failed to demonstrate that the medical records put HHC on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia or that he would subsequently develop other deficits, delays, and disorders ( see Rodriguez v. New York City Health & Hosps. Corp. [Jacobi Med. Ctr.], 78 A.D.3d 538, 538–539, 911 N.Y.S.2d 347 [1st Dept.2010], lv. denied17 N.Y.3d 718, 2011 WL 5839654 [2011] ).

Significantly, plaintiff's experts do not claim that the extreme prematurity of his delivery (during the seventh month of gestation) was attributable to any fault on HHC's part. In fact, plaintiff's experts opine that the cesarean section delivery should have been performed even earlier than it was. In view of the fact that plaintiff's injuries are typical of children born as prematurely as he was, as well as HHC's undisputed lack of fault for the necessity of a preterm delivery, we, like the motion court, are not persuaded by plaintiff's argument, accepted by the dissent, that the medical records put HHC on notice that plaintiff's injuries may have been caused by the alleged deviations from the standard of care that plaintiff's experts perceive to be documented in the record, rather than by the unavoidable necessity of delivering the child only 27 weeks into the pregnancy. Plaintiff's experts, although claiming to identify deviations from the standard of care in the record, fail to articulate any basis for determining the extent to which plaintiff's deficits were caused by the alleged deviations, as opposed to the unavoidable preterm delivery. Given that the medical records, even as interpreted by plaintiff's experts, do not yield a nonspeculative basis for determining

[992 N.Y.S.2d 234]

whether the deficits of this prematurely born child would have been less severe absent the alleged deviations, it cannot be said that the medical records put HHC on notice of the claim. As the motion court correctly stated: “There is insufficient evidence to support the finding that the infant's condition upon delivery and the subsequent issues that developed during his admission to the [neonatal intensive care unit] were caused by any malpractice as opposed to the infant's extremely premature birth, which could not have been avoided.”

Finally, plaintiff's infancy carries little weight since there is no connection between the infancy and the delay ( see Rodriguez, 78 A.D.3d at 539, 911 N.Y.S.2d 347).

All concur except ACOSTA and RICHTER, JJ. who dissent in a memorandum by ACOSTA, J. as follows:

ACOSTA, J. (dissenting).

This appeal involves the propriety of denying a motion for leave to file a late notice of claim, made pursuant to General Municipal Law § 50–e(5) in a medical malpractice action against defendant New York City Health and Hospitals Corporation (HHC or Metropolitan Hospital), in which it is alleged that the medical staff failed to properly render both prenatal and postnatal care to the infant plaintiff and to properly manage his mother's labor and delivery at 27 weeks' gestation. Plaintiff argued that HHC acquired actual knowledge of the essential facts constituting the claim within 90 days of the alleged malpractice, or a reasonable time thereafter, because the facts constituting the alleged departures from good and accepted standards of care were explicitly documented in the medical records. In particular, plaintiff asserted that the mother had a labor and delivery complicated by placental abruption,¹ chorioamnionitis,² and fetal tachycardia,³ and that after the infant suffered a grade III intraventricular hemorrhage, he “was referred directly to the developmental clinic and early intervention,” explicitly demonstrating that the hospital staff was on notice of the injury. I agree with plaintiff and would therefore reverse.

Background

The infant plaintiff was born on June 15, 2005. Pursuant to General Municipal Law (GML) § 50–e(1), plaintiff was required to serve a notice of claim on HHC by November 8, 2005 (90 days after the child's discharge from the hospital). Plaintiff served an untimely notice of claim by letter dated January 16, 2007. This action was commenced when plaintiff filed the summons and complaint on August 4, 2008, which was within the statute of limitations, as tolled by CPLR 208. On December 9, 2010, plaintiff sought an order deeming his previously served notice of claim timely nunc pro tunc, or for leave to file a late notice of claim. The motion court denied plaintiff's request and granted defendant's cross motion to dismiss.

The infant plaintiff suffers from cerebral palsy, seizures, hemiparesis, and speech and cognitive defects. His mother avers that his current condition is the result of defendant's failure to both timely deliver

[992 N.Y.S.2d 235]

the infant in the face of evidence of placental abruption, infection, and fetal distress, and to properly monitor and treat respiratory distress in the newborn.

Specifically, the infant's mother stated that, prior to her son's birth, she had been bleeding vaginally for weeks and was “passing large clots of blood.” Although her doctors had mentioned that it might be due to an abruption, they decided that it was not and told her to return if the bleeding became worse.

Dr. Stuart Edelberg averred, to a reasonable degree of medical certainty, that after reviewing the infant plaintiff's medical records it was his opinion that departures from good and accepted medical practice by HHC's hospital staff were a proximate cause of the infant plaintiff sustaining hypoxic-ischemic brain injury by placental abruption and chorioamnionitis. He also opined that the child's “[p]rolonged exposure to cytokines in utero further contributed to [his] fetal brain injury.”

Dr. Edelberg averred that the medical records demonstrated that the mother's prenatal care “was complicated by the fact that she was a type 1 diabetic with a history of prior preterm birth in March of 2002 at 29 weeks and a miscarriage at 5 weeks in October of 2003.” He also stated that the hospital staff was on notice that the mother “was at risk for complication by excessive bleeding,” because her “prior preterm delivery was associated with ‘bleeding complications.’ ”

Hospital records indicate that on May 24, 2005, the mother went to HHC, and according to a triage note, “bleeding ha[d] been ongoing for two days and [wa]s significant for bright red blood with small pink clumps of tissue.” The staff discharged the mother after determining that the “vaginal spotting” was “most likely [secondary] to [a] low-lying placenta” and that she should “return to [the] hospital if [there was] increased bleeding.” The mother returned to the hospital seven hours later, after experiencing “pelvic pain and a gush of red blood at home.” A “sterile speculum examination” was performed, which revealed that “the cervical os appeared closed and [that there was] a small 5 cc clot ... in the vault” with “a subsequent rush of clear fluid which was interpreted as [a] rupture of [the] membranes.” The admission assessment was “vaginal bleeding, rule out placental abruption, preterm premature rupture of membranes,” and the plan included “antibiotics and dexamethasone to facilitate fetal lung maturity.”

A subsequent attending note taken that same day, however, set forth a differential diagnosis of a partial abruption. According to Dr. Edelberg, since placenta previa was effectively ruled out by sonogram on May 24, 2005, the cause of the bleeding and passage of clots was a placental abruption, which was confirmed on the day the infant plaintiff was born, as noted, June 15, 2005. Although the consulting physician's opinion was that...