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Karen YATES, as Administrator of the Estate of Richard L. Eriksen, Plaintiffs, v. Jatinder SINGH, M.D., Mesaila T. Degracia, Nassau Health Care Corporation, and Nassau University Medical Center, Defendants.
Upon the foregoing papers, the Order to Show Cause by the Plaintiff, KAREN YATES (“Yates” or “Plaintiff”), as Administrator of the Estate of RICHARD L. ERIKSEN (“Eriksen” or “Decedent”), seeking an Order pursuant to General Municipal Law § 50-e, granting leave to serve a late Notice of Claim upon the Defendants, NASSAU HEALTH CARE CORPORATION (“NHCC”), NUHEALTH and NASSAU UNIVERSITY MEDICAL CENTER (“NUMC”) (or collectively referred to herein as “Defendants”), and deeming the Notice of Claim timely served nunc pro tunc, is determined as hereinafter provided.
The Plaintiff's claims arise out of the alleged negligent care and treatment rendered to the Plaintiff's Decedent, Eriksen, during his admission to NUMC on March 1, 2017 until his demise on March 2, 2017. On March 1, 2017, Eriksen presented to the emergency room of NUMC with complaints of shortness of breath. He was administered oxygen and examined by a physician who ordered a CT scan of his chest. The Plaintiff claims that Eriksen was taken off the oxygen to be transported for the CT scan and was not given oxygen upon his return to the emergency room or connected to any monitors. Later that morning, Eriksen's family members found him in the emergency room laying on a stretcher in the fetal position unresponsive and without any supplemental oxygen. A code was called, hospital staff undertook resuscitation efforts without success and Eriksen was transferred to the Intensive Care Unit (“ICU”) where he died the following day. (See NUMC Medical Records, annexed to Order to Show Cause as Exhibit “C”).
The day after the Decedent's death, on March 3, 2017, the Decedent's son, Edward Eriksen, an employee of NUMC at the time, sent an email to certain members of the NUMC administrative staff requesting preservation of any video surveillance concerning the care and treatment rendered to his father in the emergency room. The email provides:
I am demanding that the video surveillance be preserved unaltered and not erased for the entire days of March 1st through March 2nd 2017 (E.D. LOCATION). This is in regard to the treatment of my father Richard Eriksen in the E.D. On March 1, 2017. I went upstairs to visit my dad at 8:35 am and to my surprise; I found him alone in a fetal position not on oxygen and not connected to any monitoring systems. He was unresponsive, his eyes were rolled back and my sister and I went into shock realizing that no one was attending to his needs. Our first reaction was to yell for help and at that point he was rushed into the resussitation [sic ] room.
Again, I am asking for this video to verify that he was removed from his room for further testing and returned and not connected to oxygen or any monitoring system.
Your immediate attention to this matter is appreciated. A full investigation needs to be performed ASAP!
(Email dated 3/3/17, annexed to Order to Show Cause as Exhibit “D”)
On March 17, 2017, counsel for the Plaintiff sent five (5) certified letters to various administrators of NUMC advising them that the firm was retained to pursue a claim for the Estate of Richard Eriksen regarding the events which occurred in the Emergency Room on March 1, 2017. Counsel also reiterated the request to preserve all video surveillance of the emergency room “until this lawsuit is completed”. (See Letters dated 3/17/17, annexed to Order to Show Cause as Exhibit “E”).
On April 25, 2017, a Petition for Letters of Administration was filed with the Nassau County Surrogate's Court.
On June 19, 2017, Letters of Limited Administration were issued to the Plaintiff, KAREN YATES (See Letters of Administration dated 6/19/17, annexed to Order to Show Cause as Exhibit “F”).
On July 6, 2017, the Plaintiff effectuated personal service of a Notice of Claim upon NHCC, NUHEALTH and NUMC (See Notice of Claim, annexed to Order to Show Cause as Exhibit “A”).
On October 27, 2017, the Plaintiff, KAREN YATES, appeared for 50-h hearing where she was examined by the Defendants' counsel.
On January 26, 2018, the Plaintiff commenced this medical malpractice and wrongful death action by the filing of an Electronic Summons and Complaint (See Summons and Complaint, annexed to Order to Show Cause as Exhibit “G”). In their Answer, the Defendants asserted an affirmative defense alleging that the Plaintiff's medical malpractice and lack of informed consent claims are barred due to the Plaintiff's failure to timely file and serve a Notice of Claim within ninety (90) days of the date of death of the Decedent. The instant application followed.
The Defendants do not contest the timeliness of the Plaintiff's Notice of Claim as to the wrongful death cause of action.
The Plaintiff's Counsel argues that the Court should grant leave to serve a late notice on the causes of action for medical malpractice and lack of informed consent as the Plaintiff can demonstrate that (i) a reasonable excuse exists for the brief delay; (ii) the Defendants had knowledge of the essential facts constituting the claim within the statutory period; and (iii) the Defendants will not be prejudiced if the late notice is permitted. As to the first factor, counsel argues that prior to the appointment of a representative of the Estate by the Surrogate's Court on June 19, 2017, there was no one with standing to file a Notice of Claim on behalf of the Estate, and that any such Notice of Claim so filed would have been a nullity. As to the Defendants' knowledge, counsel submits that the email of March 3, 2017 and certified letters of March 17, 2017, while not denoted as a “Notice of Claim”, served as notice of the potential claim and the need to investigate and preserve evidence. Lastly, counsel argues that no prejudice would result from the brief delay because the Defendants investigated the incident and held a mortality conference. Moreover, the Defendants were in possession of the medical records which document the events that transpired in the emergency room. Notably, a progress note in the medical records provides:
08:20 Noted pt in dark room, not alert, when pt came back from Ct-scan. Alerted ER attending, Dr. Singh and brought pt to Resuscitation room immediately. CODE activated immediately.
(Exhibit “C” annexed to Order to Show Cause).
In opposition, the Defendants argue that the Plaintiff failed to provide a reasonable excuse for the approximate seven-week delay in petitioning the Surrogate's Court following Eriksen's death, and approximate two-week delay between the granting of the Letters and service of the Notice of Claim. As to notice of the essential facts constituting the claim within the statutory period demonstrated by the Decedent's son's email and counsel's certified letters, the Defendants' counsel merely asserts, “[a]lthough plaintiff relies upon the requests for a video as notifying the hospital of the claim, no one factor alone is controlling in determining whether plaintiff has met the necessary burden to permit the filing of the Late Notice of Claim or to deem the initial notice timely” (See Affirmation in Opposition at ¶ 10). The Defendants further contend that the Plaintiff failed to offer a medical affidavit in support of their malpractice claim to adequately put them on notice of the claim. As to prejudice, the sole argument advanced in counsel's affirmation is that “[a]ny delay in bring [sic ] the claim causes undue prejudice to the defense”. The Defendants do not refute that an investigation was conducted and a mortality conference was held regarding this matter.
In reply, the Plaintiff's counsel argued that the Defendants would not be prejudiced by the brief delay in filing the Notice of Claim, relying primarily upon the New York Court of Appeals case of Matter of Newcomb v. Middle Country Central School District, 28 NY3d 455 (2016). Counsel noted that the Defendants had failed to provide any evidentiary support other than an attorney's affirmation to meet their burden concerning substantial prejudice. Counsel further argued that the single sentence contained in the Defendants' attorney's affirmation that “any delay causes prejudice to the defense” is conclusory and insufficient to overcome the Plaintiff's showing of no substantial prejudice.
Timely service of a notice of claim is a condition precedent to the commencement of a tort action against a public entity [See General Municipal Law § 50—e[a]; 50—i.
General Municipal Law § 50-e (1)(a) provides, in pertinent part:
In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate.
[See General Municipal Law § 50-e (1)(a) ]
General Municipal Law § 50-e (5) governs applications for leave to serve a late notice, which provides, in pertinent part:
Upon application, the court, in its discretion, may extend the time to serve a notice of claim [t]he extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether essential facts constituting the claim within the time specified in subdivision one of this section or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.
This Court is afforded “considerable discretion in determining whether to permit the service of a late notice of claim.” Bollerman v. New York City SCA, 247 AD2d 469 (2d Dept. 1998) ].
When making a determination to grant leave to serve a late notice of claim, the knowledge of the public entity of the happening of the event is afforded great weight [See Alexander v. Board of Education, 18 AD3d 654 (2d Dept. 2005) ]. Another critical factor is whether the delay substantially prejudiced the municipal defendant in maintaining its defense on the merits (See Acosta v. City of New York, 39 AD3d 629 [2d Dept. 2007] ). Further, it is well settled that death is a statutory ground for granting leave to file a late notice of claim, provided there is no substantial prejudice to the public corporation (See Morton v. New York City Health and Hospitals Corp., 24 AD3d 229 [1st Dept. 2005]; Banegas-Nobles v. New York City Health and Hospitals Corp., 184 AD2d 379 [1st Dept. 1992]; Rechenberger v. Nassau County Med. Ctr., 112 AD2d 150 [2d Dept. 1985] ).
Turning to the facts of this case, the Court preliminarily notes that the delay was brief. The 90-day period within which to serve a notice of claim—calculated from the date of Eriksen's death—expired on May 31, 2017. Letters were granted on June 19, 2017 and a Notice of Claim was served on July 5, 2017. As such, the Notice of Claim was served only 35 days after the 90-day deadline expired, and a mere 16 days after a representative was appointed for the Decedent's Estate by the Surrogate's Court.
As to whether a representative not having been appointed for the Estate serves as a reasonable justification for the delay, the Court finds that it does. The Plaintiff's counsel correctly notes that while there is a toll applicable to wrongful death claims, no such toll applies to causes of action for conscious pain and suffering due to a defendant's alleged negligence or medical malpractice (See Yoo v. New York City Health and Hospitals Corp., 239 AD2d 267 (1st Dept. 1997) (causes of action for conscious pain and suffering properly dismissed on the grounds that the notice of claim was not served within 90 days of accrual, which was, at the latest, the date of death, and no motion for leave to serve a late notice of claim was made within the one year and 90-days Statute of Limitations). Counsel finds this distinction to be a “a quirk in the law” in that no one had standing to file a Notice of Claim on behalf of the Decedent's Estate prior to the appointment of a representative. This Court is inclined to agree with counsel's argument. Where an action cannot be commenced on behalf of a decedent prior to the appointment of a representative since no one has standing to act on behalf of the Estate, it is logical to conclude that the same standing issues stem from executing, filing and serving a notice of claim. However, the Court is bound to follow the law as it currently exists. In any event, when, as here, an application for leave to serve a late notice of claim is timely made within the applicable statute of limitations, the absence of a reasonable excuse for the delay “is not necessarily fatal when weighed against other relevant factors, including prejudice to the municipality and whether it obtained actual knowledge within the 90—day period or shortly thereafter” (Johnson v. City of New York, 302 AD2d 463 [2d Dept. 2003], citing Matter of Staley v. Piper, 285 AD2d 601, 602 [2d Dept. 2001] ).
Turning next to whether the Defendants acquired actual knowledge of the essential facts constituting the claim within the 90-day statutory period or a reasonable time thereafter, the Defendants cannot dispute that they were on notice of the potential claim. The medical records support the Plaintiff's contention that the Decedent was found in his room unresponsive and not connected to any monitors when he was brought back from the CT-scan. NUMC staff alerted the emergency room attending physician, immediately began resuscitation efforts, and activated a “CODE”. The Decedent was then transferred to ICU where he died the following day. In the days and weeks that followed, the Decedent's son and the Plaintiff's counsel reported the details of the events that transpired, including the location, time period and nature of the complained of acts and omissions. The Plaintiff also demanded video surveillance of the emergency room which to date have not been disclosed and remain within the exclusive possession of NUMC.
The email and certified letters sent to NUMC administrators in the immediate days and weeks following Eriksen's death unequivocally put the Defendants on notice of the claim. Indeed, the facts constituting the claim were entirely discernable from the medical records that were within the Defendants' possession and control. As such, their knowledge of the essential facts was equal or superior to that of the Plaintiff and was acquired contemporaneously with the injury alleged to have been sustained.
With regard to substantial prejudice, “the burden initially rests on the petitioner to show that the late notice will not substantially prejudice the public corporation.” (Matter of Newcomb, supra, 28 NY3d at 466). “Once this initial showing has been made, the public corporation must respond with a particularized evidentiary showing that the corporation will be substantially prejudiced if the late notice is allowed.” (Id. at 467).
Here, the Plaintiff sufficiently made an initial showing that the Defendants will not be prejudiced by the delay by demonstrating that the Defendants had an opportunity to, and in fact did, investigate the incident, hold a mortality conference, and examine the Plaintiff at a 50-h examination. In turn, the Defendants wholly failed to demonstrate that they suffered any prejudice from the brief delay. Significantly, the Defendants do not dispute, and thus concede, that an investigation was undertaken pursuant to the Decedent's son's request. The single assertion contained in the Defendants' attorney's affirmation is not based on “a particularized evidentiary showing”, but rather, is impermissibly “based solely on speculation and inference” (Matter of Newcomb, 28 NY3d at 465-467). Indeed, “the mere passage of time normally will not constitute substantial prejudice in the absence of some showing of actual injury” [Id. at 466, citing Matter of Sarkisian Bros. v. State Div. of Human Rights, 48 NY2d 816, 818 (1979); see also Rechenberger, 112 AD2d at 155 (the delay in serving the notice of claim was not substantially prejudicial to hospital since hospital had actual notice of underlying facts which comprised petitioner's claim; thus even if petitioners had served their notice of claim in timely fashion, information which would have been available to hospital with regard to the essential facts of claim would have been substantially the same, if not the same, as that which is now available) ]. Based upon the record evidence and applicable legal authority, the 35-day delay will not substantially prejudice the Defendants' ability to defend the medical malpractice and lack of informed consent claims on their merits.
Upon consideration of all the facts and circumstances in this matter and the applicable case law, the Court, in its sound discretion, shall permit the late filing of the Plaintiff's Notice of Claim and deem it timely served nunc pro tunc.
Accordingly, it is hereby
ORDERED, that the Plaintiff's Order to Show Cause, seeking an Order pursuant to General Municipal Law § 50-e, granting the Plaintiff leave to serve a late Notice of Claim and deeming the Notice of Claim timely served upon the Defendants, NASSAU HEALTH CARE CORPORATION, NUHEALTH and NASSAU UNIVERSITY MEDICAL CENTER, nunc pro tunc, is GRANTED, and the Plaintiff's Notice of Claim dated July 5, 2017, as annexed to the Order to Show Cause, is hereby deemed timely served nunc pro tunc; and it is further
ORDERED, that all parties are directed to appear for a Preliminary Conference in the PC Part of this Courthouse on July 12, 2018 at 9:30 a.m.
Randy Sue Marber, J.
Response sent, thank you
Docket No: 601020/18
Decided: June 22, 2018
Court: Supreme Court, Nassau County, New York.
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