Wally G. v.
| Decision Date | 09 June 2016 |
| Docket Number | No. 95,95 |
| Parties | Wally G., an Infant, by His Mother and Natural Guardian, Yoselin T., Appellant, v. New York City Health and Hospitals Corporation (Metropolitan Hospital), Respondent. |
| Court | New York Court of Appeals Court of Appeals |
John M. Daly, for appellant.
Marta Ross, for respondent.
New York State Conference of Mayors and Municipal Officials, amicus curiae.
The issue on this appeal is whether the Appellate Division abused its discretion in affirming Supreme Court's denial of plaintiff's motion for leave to serve a late notice of claim on defendant New York City Health and Hospitals Corp. (HHC). We hold that it did not.
General Municipal Law § 50-e (1) (a) requires that a notice of claim be served on a public corporation "within ninety days after the claim arises." In medical malpractice actions, "the cause of action accrues on the date when the alleged original negligent act or omission occurred" ( Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295 [1998] [citation omitted]).
A party seeking leave to serve a late notice of claim must make an application to the court for that relief, and the court, in its discretion, may extend the party's time to serve a late notice (see GML § 50-e [5]). In making that determination, among other things, "the court shall consider, in particular, whether the public corporation . . . acquired actual knowledge of the essential facts constituting the claim within [ninety days] . . . or within a reasonable time thereafter."1 Because the decision to grant or deny an application for an extension under section 50-e (5) is "purely a discretionary one" (Cohen v Pearl River Union Free Sch. Dist., 51 NY2d 256, 265 [1980]), our review is limited to whether the Appellate Division abused its discretion in making such a determination (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 539 [2006], citing Matter of Murray v City of New York, 30 NY2d 113, 119 [1972]; see also Pearson v New York City Health & Hosps. Corp., 10 NY3d 852, 854 [2010]).
Plaintiff was born prematurely by emergency cesarean section on June 15, 2005. He was transferred to the neonatal intensive care unit and discharged in stable condition on August 10, 2005.
On January 14, 2007, more than 90 days after the claim arose, without first obtaining leave of court as required by General Municipal Law § 50-e (5), plaintiff, by his mother and natural guardian, served a notice of claim against HHC alleging negligence and malpractice arising out of, among other things, HHC's failure to properly treat and manage his mother's prenatal care up until the date of plaintiff's delivery, and its failure to obtain informed consent with regard to plaintiff's neonatal and pediatric care. It was claimed that plaintiff sustained brain damage, cognitive defects, developmental, speech and psychomotor delays, fetal and respiratory distress and seizure disorder as a result of such negligence and malpractice.
Plaintiff then brought suit against HHC in August 2008,2 but waited until December 2010, over five years after the claim arose, to move for permission to serve a late notice of claim. In support of that motion, plaintiff submitted voluminous medical records along with affidavits from medical experts who, based on those records, opined that HHC's deviations from the standard of care resulted in plaintiff's injuries.
HHC cross-moved to dismiss the complaint on the ground that plaintiff failed to comply with General Municipal Law § 50-e (5). Supreme Court denied plaintiff's motion and granted HHC's cross-motion."3
A divided Appellate Division affirmed. The majority found unreasonable the excuse by plaintiff's counsel "that he waited to make the motion [for leave to serve a late notice of claim] until approximately three years and ten months after the filing of the untimely notice of claim because he needed to receive the medical records from HHC" (120 AD3d 1082, 1083 [1st Dept 2014] [citation omitted]). It also held that plaintiff failed to establish "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" (id.). The dissenters, relying on our decision in Williams, asserted that HHC's hospital chart "demonstrate[d] that HHC had actual notice of the essential facts constituting the claim within 90 days of accrual or a reasonable time thereafter," stating that such records "merely need to suggest injury attributable to malpractice" (120 AD3d at 1093 [emphasis in original]). In the dissent's view, the affidavits of plaintiff's experts established that HHC's "delay in performing an emergency cesarean section and in providing immediate ventilation through intubation, and its discussion of subsequent neurological sequelae with the parents after the diagnosis of the grade III [intraventricular hemorrhage], while not dispositive, suggest[ed] injury attributable to medical malpractice" (id. [emphasis supplied]).
Plaintiff appealed to this Court as of right pursuant to CPLR 5601 (a), and we now affirm.
The affidavits submitted by plaintiff's experts simply interpreted the medical records and posited that HHC could have engaged in alternative courses of treatment which, in their view, would have produced different results, and that plaintiff's health complications could have been avoided had HHC taken a different approach. However, mere assertions that a different course of treatment could have been followed does not address whether HHC had actual knowledge of the essential facts necessary to properly defend itself in the underlying action. On this record, it cannot be said that the lower courts abused their discretion in denying service of a late notice of claim.
In Williams, we held that section 50-e (5)'s actual knowledge requirement "contemplates 'actual knowledge of the essential facts constituting the claim,' not knowledge of a specific legal theory" (Williams, 6 NY3d at 537). A medical provider's mere possession or creation of medical records does not ipso facto establish that it had "actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process" (id. [emphasis supplied]).
Contrary to plaintiff's argument and the rationale of the dissent below, the medical records must do more than "suggest" that an injury occurred as a result of malpractice. That argument implies that so long as medical experts reasonably disagree as to whether, based on their respective interpretations of the medical records, the medical staff deviated from the standard of care, a factual question is present and an application for service of late notice must be granted as a matter of law. While we stated in Williams that there was "little to suggest injury attributable to malpractice" in that particular case, our use of the word "suggest" was not intended to deviate from our holding in that case that the medical records must "evince that the medical staff, by its acts or omissions, inflicted an[] injury on plaintiff . . ." in order for the medical provider to have actual knowledge of the essential facts (Williams, 6 NY3d at 537).
For purposes of determining whether leave to serve a late notice of claim should be granted, determinations concerning a medical provider's "actual knowledge" and whether the medical records "evince" that the medical provider inflicted injury on the plaintiff rest in the sound discretion of the court. Our review is thus limited to whether there was an abuse of discretion in denying service of late notice. We discern no such abuse of discretion.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Because I believe that the courts below abused their discretion in holding that infant plaintiff Wally G.'s hospital records did not provide defendant New York City Health and Hospitals Corporation (HHC) with actual knowledge of injury attributable to its potential malpractice, I dissent.
Wally — who suffers from a range of neurological and cognitive deficits and disorders, including cerebral palsy, seizures, and speech defects — served, through his mother, a late notice of claim on HHC, without leave of court, alleging that HHC failed to timely and properly treat fetal distress and deliver him. At issue in this case is whether the courts below abused their discretion in denying Wally's motion for an order deeming the previously-filed notice of claim timely nunc pro tunc or, in the alternative, granting him permission to file a late notice of claim. Wally asserts that his motion should have been granted because HHC's medical records supplied it with actual knowledge of the essential facts constituting his present claim and therefore HHC would not be prejudiced by permitting the late filing. The majority concludes that the courts below did not abuse their discretion in denying Wally's motion because his medical records did not provide HHC with actual knowledge of the facts underlying his claim. That conclusion, however, is belied by the record in this case.
General Municipal Law § 50-e requires that a notice of claim be served on a municipal defendant in a tort action within 90 days of accrual. Where a plaintiff fails to comply with the time limit under the statute, courts may in their discretion extend the time to serve the notice of claim (see General Municipal Law § 50-e [5]). In determining an application to serve a late notice of claim, the court must weigh "all . . . relevant facts and circumstances," including, as relevant here, "whether the [defendant] . . . acquired actual knowledge of the essential facts constituting the claim within the time specified [in General Municipal Law § 50-e (1) (a)] or within a reasonable time thereafter" (id.). Addition...
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