Application to file late claim is denied where medical malpractice cause of action is untimely and is unsupported by medical affidavit or probative medical records; negligence cause of action purportedly based on alleged breach of Americans with Disabilities Act requirements lacks appearance of merit because defendant acted within its discretion in providing reasonable accommodations based upon its medical judgment and because claimant failed to submit competent medical proof of alleged medical disability and failed to show that defendant failed to follow any specific medical instructions in its treatment of claimant.
|Claimant short name:||PABON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||REYNALDO PABON
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Charles Lim, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 7, 2020|
|See also (multicaptioned case)|
Claimant moves for permission to file a late claim pursuant to Court of Claims Act 10 (6). Defendant opposes the application.
The proposed claim alleges that claimant suffered personal injuries on "December 1, 2017, as claimant was climbing stairs at Clinton Correctional Facility going to the law library, he had an episode from his Syncope and fell down the stairs." The claim further alleges that:
"The claim against the State of New York is for the tort of medical malpractice and negligence and claims of ministerial neglect.
Claimant will show that the State had a duty to provide reasonable and adequate medical care in a timely manner but breached that duty; the State had a duty to provide reasonable accommodations accorded within the American with Disability Act Rule 501, or, to wit, place Claimant in a facility with a Regional Medical Unit (RMU), due to his medical condition but breached that duty; the State had a duty to follow recommended medical instructions but breached that duty."
The claim also alleges that the defendant "made decisions based on non-medical factors and failed to supervise subordinates to ensure that Claimant received timely and adequate medical care and reasonable accommodations."
Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."
Claimant's cause of action alleging medical malpractice is governed by the two years and six months limitation period set forth in CPLR 214-a.
The claimant has not produced any accident or incident report concerning his alleged fall on December 1, 2017 and offers only piecemeal medical records concerning any alleged medical care or treatment before or after the alleged incident. In fact, claimant provides sparse, if any, competent medical proof of his alleged disabling condition, which he describes as "Syncope."
The only relevant medical information submitted by claimant arguably related to medical treatment by defendant prior to his alleged fall on December 1, 2017, beyond claimant's own conclusory statements, is contained in the claimant's "Request For Reasonable Accommodation" which appears to contain notes and recommendations from "V. Johnson, MD FHSD," dated September 1, 2017. The only other submitted medical record specifically related to the alleged December 1, 2017 incident is the Albany Medical Center "Physician's Notes" dated December 2, 2017 which concluded that "Pt with Syncope and fall down stairs. Had extensive trauma work-up which was neg. Plan for admission for syncope."
The late claim application was served by regular mail on or about March 6, 2020, more than two years and six months after the September 1, 2017 medical notes and the proposed cause of action for medical malpractice is untimely.
Even had claimant made a timely application, it would be denied for lack of appearance of merit. In determining a late claim application, Court of Claims Act 10 (6) provides that:
"[T]he court shall consider, among other 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."
Savino v State of New York (199 AD2d 254, 255 [2d Dept 1993]), recognized that "it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion."
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 833-834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
To sustain a cause of action for medical malpractice, a claimant must plead and prove, generally through expert medical opinion testimony, two essential elements: (1) a deviation or departure from accepted practice, and (2) that such departure was a proximate cause of claimant's injury (Carter v Tana, 68 AD3d 1577, 1579 [3d Dept 2009]).
It is well settled that "[g]eneral allegations of medical malpractice, [which are] merely conclusory and unsupported by competent evidence tending to establish [its] essential elements ... are insufficient" to state a prima facie case (Alvarez v Prospect Hosp., 68 NY2d 320, 325 ).
Further, "[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case" (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 ; see Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 ; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]).
The fact that claimant proceeded pro se does not excuse the need for expert medical opinion to demonstrate a deviation from the applicable standard of care (Duffen v State of New York, 245 AD2d 653, 653-654 , lv denied 91 NY2d 810 ).
Claimant has not provided the affidavit of a medical expert or medical records in admissible form in support of his claim of medical malpractice and, in particular, has failed to adequately plead that defendant's alleged acts and omissions were a departure from accepted medical practice or proximately caused claimant's purported injuries.
The scant medical documents provided by claimant do not demonstrate "that the treatment rendered was medically inappropriate or harmful . . . [n]one of these elements is established by claimant's medical records. Thus, expert medical evidence clearly is required to demonstrate that the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standards [citations omitted]" (Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]).
In Matter of Robinson v State of New York (35 AD3d 948 [3d Dept 2006]), claimant alleged, among other things, that a surgical procedure performed by defendant had caused claimant to suffer a skin rash. In Robinson (35 AD3d at 950), the court stated, "[m]oreover, claimant provided no medical records or expert medical proof to support his allegations of medical malpractice (see Matter of Gonzalez v State of New York, supra at 676; Matter of Perez v State of New York, supra at 919). We, therefore, find no abuse of discretion in the denial of claimant's application to file a late notice of claim with respect to the January 2005 surgical procedure."
Claimant's medical malpractice cause of action lacks the appearance of merit.
Next, the claimant's allegations that defendant's discretionary actions or inactions were negligent in failing to appropriately accommodate claimant's purported medical disability by transferring him to a "Regional Medical Unit," or otherwise failed to offer claimant other "reasonable accommodations," lack the appearance of merit. In this regard, it is noted that "[a] public employee's discretionary acts--meaning conduct involving the exercise of reasoned judgment--may not result in the [State's] liability even when the conduct is negligent" (Lauer v City of New York, 95 NY2d 95, 99 ).
Claimant's "REQUEST FOR REASONABLE ACCOMMODATION" due to his claimed disability was granted on September 5, 2017, based on the examination of "V. Johnson, MD, FHSD" as follows:
"Limit risk of head injury - protective head gear, flats housing and block showers to avoid stairs have been provided. Mess hall and yard (phone access) do not require use of stairs and thus may participate. Transfer not necessary at this time."
The recommendations, by their express terms, did not prohibit claimant from using stairs or order that defendant ensure that claimant not use stairs, but instead provided means and methods intended to permit claimant to avoid stairs to the extent possible.
Claimant accepted the reasonable accommodations on September 8, 2017 and did not assert a formal grievance to modify the reasonable accommodations until on or about December 13, 2017, after the alleged incident of December 1, 2017.
Though claimant attaches typed and hand-written documents apparently intended to show he complained regarding the accommodations provided on September 5, 2017, prior to his alleged fall on December 1, 2017, the Clinton Correctional Facility "grievance printout" for claimant, requested by claimant and provided to the Court with his late claim application, shows only that a relevant grievance was filed on December 18, 2017, after the alleged incident of December 1, 2017. The Clinton Correctional Facility "grievance printout" for claimant also shows that claimant filed eleven (11) grievances in the approximately fourteen (14) months between October 3, 2016 and December 1, 2017 (the date of the subject incident), none of which involved claimant's alleged disability or any request for, or challenge to, the reasonable accommodations provided by defendant for his alleged disability.
If defendant had refused "reasonable accommodations" to claimant for his alleged disability, or if claimant found the "reasonable accommodations" inadequate, his equitable remedy lay in the facility grievance procedure (with which claimant is clearly familiar) followed by a CPLR Article 78 challenge to the administrative determination. The record shows that claimant did not challenge, via grievance and/or CPLR Article 78, the September 5, 2017 discretionary "reasonable accommodations" determination of defendant until after the alleged incident of December 1, 2017.
Further, the "reasonable accommodations" provided by defendant were crafted by a medical doctor ("V. Johnson, MD, FHSD") based upon claimant's alleged medical condition and claimant's challenge to her medical determination is grounded in alleged medical malpractice and, as set forth above, is untimely.
Finally, as to a cause of action based upon defendant's purported negligence in failing "to follow recommended medical instructions" claimant has failed to provide admissible medical proof of such "recommended medical instructions" or that defendant failed to follow any such specific "recommended medical instructions."
The claimant's motion for permission to file a late claim is accordingly denied.
August 7, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Motion For Permission To File A Late Claim, filed March 12, 2020;
2. Affidavit of Reynaldo Pabon, sworn to March 6, 2020, and annexed exhibits, including proposed claim;
3. Affirmation in Opposition of Charles Lim, dated July 7, 2020, and attached exhibit;
4. Unsworn Reply ("Claim") of Reynaldo Pabon, filed July 10, 2020, and annexed exhibits.