Late claim motion denied. Claimant failed to show that the delay in filing the claim was excusable, he had another remedy available, and he failed to provide expert proof to support his medical malpractice and medical negligence claim, which thus lacked the appearance of merit.
|Claimant short name:||LALL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||TARCHAND LALL, Pro se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||August 19, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, moves pursuant to Court of Claims Act § 10 (6) for permission to file and serve a late claim alleging medical malpractice. Defendant has not responded to the motion.
The proposed claim alleges that claimant was the victim of medical malpractice at the medical facility at Green Haven Correctional Facility (CF) on March 20, 2019 and August 9, 2019, and that "claimant was either given an overdose of medication or was . . . given the wrong medication (mistakenly or purposely)" (Proposed Claim, ¶ 7-8). The proposed claim alleges that on the first occasion, claimant "was given a direct order to take an additional dose of Trazadone, instead of [his] normal medication [that] was usually taken daily for TB" (id. at ¶ 8). The proposed claim alleges that as a result of the overdose of Trazodone, claimant became lightheaded and fell, resulting in a broken nose (see id. at ¶ 10). The proposed claim further alleges that
"[o]n the second occasion, . . . a nurse provided [claimant's] daily medication (AS USUAL), but approximately 30 minutes later he was ordered by prison security staff to return to the hospital when he was informed "that he had been dispensed medication that was not prescribed for him." AT THIS POINT HE WAS GIVEN ANOTHER MEDICATION, which was allegedly his properly prescribed medication"
(id. at ¶ 9 [emphasis in original]). The proposed claim alleges that claimant began to vomit blood shortly after receiving the second medication (see id. at ¶¶ 9-10). The proposed claim alleges that "[t]he Medical Staff admitted to such, and . . . claimant was called back to the Facility's clinic for further evaluation" (id. at ¶ 10). The proposed claim alleges that as a result of the two incidents, claimant experienced a broken nose, which resulted in an inability to breathe through his nose, dizziness, and frequent urination (see id. at ¶ 12), and alleges a single cause of action sounding in medical malpractice on the ground that defendant breached its duty to provide him with "proper and adequate medical care" when defendant's employees provided him with incorrect medication and dosages (see id. at ¶¶ 18-25).
In deciding a motion for late claim relief, the Court is required to consider the following factors:
"whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy"
(Court of Claims Act § 10 ). The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court.
In support of his late claim motion, claimant argues that the delay in filing this claim was excusable because he "is not a lawyer and had no access to legal counsel" and "also had limited access to [the] law library, research materials and supplies" (Lall Affidavit, ¶ 2). Claimant further argues that he "was only recently able to gain the assistance of a 'jailhouse lawyer' that was willing, able and capable of assisting him in preparing this claim" (id.). Defendant has not responded to the motion and thus has not addressed this factor. However, it is well settled that "neither claimant's professed ignorance of the law nor his confinement in a correctional facility provide an acceptable excuse" for failing to timely file a claim in the Court of Claims (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 ; Matter of Powell v State of New York, 187 AD2d 848, 849 [3d Dept 1992]), and, likewise, that a "[c]laimant's asserted inability to secure an attorney is no basis for delay in filing" (Simpson v State of New York, 96 AD2d 646, 646 [3d Dept 1983]). Accordingly, this factor weighs against granting the motion for late claim relief.
The next three factors - whether the State had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim, and whether claimant's failure to file or serve upon the attorney general a timely claim or notice of intention resulted in substantial prejudice to the State - are closed related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). In support of his late claim application, claimant asserts that defendant investigated his grievance related to these events, which provided it with notice of the essential facts underlying this claim (see Lall Affidavit, ¶ 3). Claimant further argues that the State has not been substantially prejudiced as a result of his failure to timely file and serve this claim in light of "the abundance of essential facts that the State possessed about this claim, . . . along with the merits of the [proposed] claim, [and] the minimal delay in filing this claim just a short time after the ninety day time period . . . to file a Notice of Intention" (id. at ¶ 5). As noted above, defendant has not responded to this motion and does not dispute these three factors, and thus these three factors weigh in favor of granting the late claim application.
Turning next to the appearance of merit of the proposed claim, this factor is often decisive because, although Court of Claims Act § 10 (6) reflects a legislative determination that "litigants with meritorious claims [should] be afforded their day in court" (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]; see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]), the courts have recognized that a late claim application should not be granted where a claim is "legally deficient . . . [and] would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" (Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he or she will prevail on the claim. Rather, a proposed claim has the appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not "patently groundless, frivolous, or legally defective," and (2) all of the evidence submitted on the motion establishes "reasonable cause to believe that a valid cause of action exists" (Matter of Santana, 92 Misc 2d at 11).
It is well settled that "the State owes a duty to provide medical care and treatment to its prisoners" (Kagan v State of New York, 221 AD2d 7, 16 [2d Dept 1996]). Regardless of whether the claim sounds in medical negligence or medical malpractice, a claimant "must establish that the negligence of the State or the State's deviation from the accepted standard of care was the proximate cause of the claimant's injuries" (Lowe v State of New York, 35 AD3d 1281, 1282 [4th Dept 2006]). In the context of a late claim motion, when a proposed claim asserts medical malpractice, the merit of such a claim must be readily apparent from medical records submitted on the motion or supported by an expert affidavit (see Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]; Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]; Rosario v State of New York, 8 Misc 3d 1007[A] [Ct Cl 2005]; Jackson v State of New York, UID No. 2007-029-001 [Ct Cl, Mignano, J., Jan. 10, 2007]), as well as by evidence that defendant "breached the standard for good and acceptable care in the locality where the treatment occurred and that [the] breach was the proximate cause of [the claimed] injury" (Bracci v Hopper, 274 AD2d 865, 867 ). Further, in claims alleging medical negligence, expert medical proof is required where medical issues are raised that are "not within the ordinary experience and knowledge of lay persons" (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 ).
In support of his late claim motion, claimant argues that the proposed claim has the appearance of merit inasmuch as "the evidence will show that the Green Haven [CF] Medical Staff acted with malice by repeatedly giving [him] the wrong medication and placing [his] life in danger" (Lall Affidavit, ¶ 4). Claimant further argues that defendant is not entitled to absolute immunity because its "employees fail[ed] to comply with governing statues, rules, regulations and directives, especially when dispensing medication" (id.). As noted above, defendant has not responded to the motion.
Claimant has submitted in support of his late claim motion a copy of his medical records from the Green Haven CF medical facility. As relevant here, the medical records show that on March 31, 2019, claimant fell in the bathroom and broke his nose due to low blood pressure (see Lall Affidavit, attachments [NYSDOCCS Request & Report of Consultation, dated March 31, 2019]) after suffering from nausea and dizziness for the last several days (see id. [Perez Ramos Final Report, dated March 31, 2019]). According to the records, claimant reported that he "[did] not remember what happened" (id. [Borress Final Report, dated April 3, 2019]; see Imperato-Wilber Final Report, dated March 31, 2019 ["Patient has no recollection of event"]). With respect to the alleged August 9, 2019 incident, the medical records do indicate that claimant "was given wrong med" on that date, and that the "clinic provider" was notified, and a review of claimant's records revealed no allergies to medication (id. [Ambulatory Health Record Progress Note, dated August 9, 2019]). That afternoon, claimant complained that he was " 'coughing up blood,' " that his "'face [felt] funny,'" and that he was experiencing stomach cramps (id. [Ambulatory Health Record Progress Note, dated August 9, 2019 at 1:45 p.m.]). A progress note indicates that a call to the pharmacy revealed "an interaction" between two medications, and that one of those medications was discontinued and replaced with another (id. [Ambulatory Health Record Progress Note, dated August 9, 2019]). There is no other information related to this incident in the medical records.
The uncertified medical records submitted by claimant in support of his late claim motion do not patently reveal medical malpractice by defendant's employees at Green Haven CF, and claimant has not submitted an expert affidavit stating that defendant's actions departed from the accepted standard of care or that any such departure was a proximate cause of the claimed injuries. Rather, with respect to the first alleged incident, the medical records include no evidence to support claimant's allegation that he was given an overdose of Trazodone, causing him to fall and break his nose, but rather that his fall was caused by a longstanding blood pressure condition. To be sure, the medical records do indicate that claimant was given the wrong medication on August 9, 2019. However, there is no evidence in the medical records tending to establish that there was a connection between that incident and his subsequent injuries - i.e., vomiting blood - and thus, that any breach was a proximate cause of claimant's injuries. Therefore, inasmuch as the issue of whether the administration of the incorrect medication caused claimant to vomit blood is an issue "not within the ordinary experience and knowledge of lay persons," it was incumbent upon claimant to provide an expert affidavit establishing proximate cause (Wells, 228 AD2d at 582). Moreover, because the records do not identify the medication that was mistakenly administered to claimant, it is unclear whether the notation about an interaction between two drugs refers to the medication claimant was given by mistake.
In the absence of an expert affidavit, claimant has failed to prove that the proposed medical malpractice claim has the appearance of merit (see Decker v State of New York, 164 AD3d 650, 653 [2d Dept 2018] ["the claimants failed to demonstrate a potentially meritorious cause of action based on their allegations of medical malpractice, since they failed to provide an affidavit of merit from a physician"]; Green v State of New York, UID No. 2020-015-044 [Ct Cl, Collins, J., May 6, 2020] [claimant failed to demonstrate appearance of merit of proposed claim sounding in medical malpractice where the medical records submitted in support of the proposed claim were uncertified, and claimant failed to submit the affidavit of an expert physician]). Moreover, to the extent the claim can be construed as sounding in medical negligence due to the allegations that claimant was administered the wrong medication on August 9, 2019, while expert proof is not required to establish that there was a breach (see Carter v State of New York, 11 Misc 3d 1082[A], 2006 NY Slip Op 50653[U], *3 [Ct Cl 2006] [theory of medical negligence "alleges negligent omissions or commissions by State caregivers which can be readily determined by the fact finder using common knowledge without the necessity of expert testimony"]), as noted above, there is no indication in the medical records submitted in support of the late claim application to establish that defendant's administration of the wrong medication caused claimant's injuries, and expert proof - which was required to prove such a causal connection - was lacking. Accordingly, the factor of the appearance of merit weights against granting late claim relief.
Lastly, claimant argues that "the only other remedy [he] may have available is a Federal Civil Rights action, but such action would come with substantial burdens including a much higher pleading requirement" (Lall Affidavit, ¶ 6). Claimant further argues that he "would find it extremely difficult to pursue such a proceeding and severely prejudice his ability for relief in this matter" (id.). Although defendant has not opposed the motion and thus does not address this factor, it nevertheless weighs against granting the late claim application inasmuch as claimant has conceded that he has another remedy available. Additionally, claimant may also bring an action against the doctors and medical providers individually (see Sears v State of New York, UID No. 2020-058-019 [Ct Cl, Leahy-Scott, J., Feb. 24, 2020; DeCastro v State of New York, UID No. 2019-050-044 [Ct Cl, Lynch, J., Oct. 2. 2019]; La Gray v State of New York, UID No. 2019-018-038 [Ct Cl, Fitzpatrick, J., July 8, 2019]). Thus, this factor weighs against granting the late claim application.
Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), the Court finds that although three of the six statutory factors weigh in support of granting claimant's late claim application, the crucial factor of the appearance of merit, the reason for the delay in filing the claim, and the availability of other remedies weigh decisively against granting the motion. Thus, claimant's motion to serve and file this late claim will not be granted.
Accordingly, it is
ORDERED, that claimant's motion number M-95185 is DENIED.
August 19, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Motion For Permission to File A Late Claim, dated January 9, 2020;2. Affidavit of Tarchand Lall in Support of Motion For Permission To File A Late Claim, sworn to January 9, 2020, with attachments;
3. Proposed Claim, dated January 3, 2020;
4. Affidavit of Service of Tarchand Lall, sworn to January 9, 2020.