Application to file late claim is denied where medical malpractice cause of action is unsupported by expert medical opinion or admissible medical records.
|Claimant(s):||RUBEN GONZALEZ, I.D. NO.: 17-A-2552|
|Claimant short name:||GONZALEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||RUBEN GONZALEZ
|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:||November 4, 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 sustained "damages/injuries" due to "Inadequate Medical Care and Treatment" for an injury to his "Achilles Tendon" at Clinton Correctional Facility. The proposed claim requests money damages for past and future "physical pain and mental anguish."
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 any medical records in support of his claim of medical malpractice.
In Matter of Robinson v State of New York (35 AD3d 948 [3d Dept 2006]), claimant's proposed late claim alleged, among other things, that a surgical procedure performed by defendant had caused claimant to suffer a skin rash. The Robinson court (35 AD3d at 950), affirmed the Court of Claims denial of the late claim application, stating:
"Moreover, 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.
The claimant's motion for permission to file a late claim is denied.
November 4, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion, filed October 1, 2020;
2. Affidavit of Ruben Gonzalez, sworn to September 1, 2020, and verified proposed claim;
3. Affirmation in Opposition of Charles Lim, dated October 13, 2020.