The defendant's unopposed motion for an order of preclusion, striking the medical negligence claim, and granting summary judgment granted.
|Claimant short name:||EGNASKO|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||NO APPEARANCE|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 28, 2021|
|See also (multicaptioned case)|
The following papers were read on defendant's motion for an order of preclusion, striking
the medical negligence claim and granting summary judgment:
1. Notice of Motion with Affirmation of Thomas G. Ramsay, AAG and attached exhibits, filed May 3, 2021;
2. Filed papers: Claim and Certificate of Merit, Verified Answer.
Before the Court is defendant's unopposed post answer motion to dismiss and/or for summary judgment pursuant to CPLR 3211 and/or 3212, and Court of Claims Act §§ 10 (3) and 11 (b). Defendant seeks dismissal of claimant's medical malpractice/medical negligence claim on both procedural and substantive grounds. As to the former, defendant contends that (1) the claim is defective because it does not identify an accrual date; (2) the claim is untimely because it was not filed and served within 90 days of the latest possible accrual date, that being his release from prison; and (3) the notice of intent to file a claim was jurisdictionally defective and the amended notice was a nullity. Substantively, the defendant submits the claim has no merit, which contention is supported by the unrefuted opinion of its medical expert. Additionally, defendant seeks an order precluding claimant from submitting an expert opinion or any medical proof since claimant did not provide his expert disclosure on or before April 9, 2021 per this Court's directive. Claimant has not answered the motion. For the reasons set forth below, the defendant's motion to dismiss and/or for summary judgment is granted, however, the motion to preclude is denied as moot.
On February 6, 2017, claimant filed his claim, along with a certificate of merit, for medical negligence in failing "to have referred Claimant for timely emergency neurosurgical consultation and to have performed timely surgery" to address his "severe spinal cord condition." Claimant omitted any specific dates from his claim, but generally alleged negligence during his entire period of incarceration from November 1, 2010 until his release in October of 2015. (claim, at 2 ¶¶ 2 and 4.) As a result of the defendant's alleged negligence, claimant alleged "permanent significant decreased function of his muscles resulting in decreased mobility in his legs; inability to move his extremities; excruciating pain and suffering; extensive and prolonged and unsuccessful therapy; significant loss of enjoyment of life; and significant reduction of potential earning power." (id.) Claimant alleged $10 million in damages.
Defendant filed a verified answer dated March 20, 2017 generally denying the allegations and asserting 13 affirmative defenses.
The Court concurs with the defendant's analysis regarding the pleading deficiencies of claimant's notice of intent to file a claim, requiring this Court to conclude that claimant untimely filed and served his claim. In considering a motion to dismiss, a Court must start with the Court of Claims Act § 8 which sets forth the State's waiver of immunity from liability and action for money damages. Claims and notices of intention to file a claim are subject to compliance with the limitations of Article II of the Court of Claims Act which includes Section 11 (see Lepkowski v State of New York, 1 NY3d 201, 206 ). Section 11 (b) of the Act sets forth five elements that the claimant must specify in a claim, including: the nature of the claim; the time when and place where it arose; the items of damage or injury claimed to have been sustained; and the total sum claimed. It further mandates that a notice of claim shall set forth all the requirements for a claim except for the total sum of damages. "Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability." (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotations and citations omitted].) New York Courts have repeatedly confirmed that the defendant is "not required 'to ferret out or assemble information that section 11 (b) obligates the claimant to allege' (Lepkowski v State of New York, 1 NY3d at 208)." (Alexander v State of New York, UID No. 2021-032-042 [Ct Cl, Hard, J., Apr. 27, 2021].) New York Courts have "strictly construed" the statutory requirements in §11 (b) of the Court of Claims Act. (Lepkowski v State of New York, 1 NY3d at 207 [internal quotation marks and citations omitted].) A claimant's failure "to comply with the substantive pleading requirements of Court of Claims Act § 11 (b) is a defect resulting in the lack of subject matter jurisdiction which is not waivable." (Somer v State of New York, UID No. 2014-044-525 [Ct Cl, Schaewe, J., June 5, 2014] [internal citations omitted].) This is so, even if the mandated dismissal of the claim results in a harsh outcome. (see Kolnacki v State of New York, 8 NY3d 277, 281 ; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010], lv dismissed 15 NY3d 911, ; Morra v State of New York, 107 AD3d at 1115.)
Here, claimant's failure to include the place where he was allegedly harmed, nor provide specific dates of the defendant's negligent acts invalidates the notice of intent to file a claim and renders it null and void. (see Oakland v State of New York, UID No. 2017-045-020 [Ct Cl, Lopez-Summa, J., June 19, 2017]; Fish Bait Company v State of New York, UID No. 2008-033-303 [Ct Cl, Lack, J., June 27, 2008].) The notice of intent is entirely lacking any description as to the place where the alleged negligent acts and omissions occurred; it is not enough to allege that the New York State Department of Corrections and Community Supervision was the negligent actor. (see Mosley v State of New York, 117 AD3d 1417, 1417 [4th Dept 2014]; Ashline v State of New York, UID No. 2013-010-006 [Ct Cl, Ruderman, J., Mar. 22, 2013].)
With respect to identifying when the claim arose, the Fourth Department confirmed in Matter of Geneva Foundry Litig. "the State is not required to ferret out or assemble information that section 11(b) obligates the claimant to allege." (173 AD3d 1812, 1813 [4th Dept 2019] [internal quotation marks and citation omitted].) The Fourth Department held in Matter of Geneva Foundry Litig. that
"If the claimant fails to specify the dates relevant to the elements of the claim or provides only a broad range of dates, the claim is jurisdictionally defective and properly dismissed (see e.g., Lepkowski, 1 NY3d at 207; Dixon v State of New York, 153 AD3d 1529, 1530 [3d Dept 2017], appeal dismissed 30 NY3d 1087 ; Hargrove v State of New York, 138 AD3d 777, 777-778 [2d Dept 2016]; Jones v State of New York, 56 AD3d 906, 907-908 [3d Dept 2008]; Robin BB. v State of New York, 56 AD3d 932, 932-933 [3d Dept 2008])."
(Id. at 1813-14.) Here, the claimant failed to provide any specific dates but gave the entire range of his five year incarceration. Accordingly, the notice of intent to file a claim was jurisdictionally defective and claimant did not receive the benefit of additional time beyond the 90 days to file his tort claim.
Claimant's attempt to cure his statutorily deficient notice of intent to file a claim by amendment is equally unavailing. The notice is not a pleading and therefore is not subject to amendment like a claim or an answer. (see Civil Practice Law and Rules §§3011, 3025.) Rather, its primary function is notice to defendant alerting it "to its need to investigate matters the notice addresses, and of affording a claimant an additional period in which to serve and file his claim. See Sega v State of New York, 246 AD2d 753 (3d Dept 1998) lv denied 92 NY2d 805 (1998)." (Kingsberry v State of New York, UID No. 2011-030-513 [Ct Cl, Scuccimarra, J., Jan. 28, 2011].)
Section 10 (3) of the Court of Claims Act required the claimant to either: (1) file and serve his negligence claim upon the attorney general within 90 days after the incident that served as the basis for the claim occurred or (2) within 90 days of the accrual of his claim, claimant serve upon the attorney general a written verified notice of intention and within two years file and serve a verified claim. "The failure to comply with the time and manner of service requirements contained in Sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this Court of the power to hear the claim." (Shomo v State of New York, UID No. 2007-013-008 [Ct Cl, Patti, J., Mar. 30, 2007] [internal citations omitted].)
Court of Claims Act § 10 is not merely a statute of limitations. It constitutes a jurisdictional prerequisite to commencing a viable action in the Court of Claims. "Failure to timely comply with the statutory [service] requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal. The Court cannot waive a defect in jurisdiction that has been timely raised." (Tolliver v State of New York, UID No. 2009-040-053 [Ct Cl, McCarthy, J., July 9, 2009] [internal citations omitted].) As required by Court of Claims Act § 11 (c), the state raised in its answer the specific deficiencies of claimant's notice of intent and amended notice of intent rendering claimant's filing and service of his claim untimely.
It is undisputed that claimant filed his claim on February 6, 2017, approximately 15 months after he was released from incarceration sometime in October 2015, the last possible date defendant either treated or failed to treat him. Since neither a jurisdictionally sound notice of intent, nor a timely claim was filed, claimant's failure to strictly comply with the statutory requirements contained in Court of Claims Act 10 § (3) deprives the Court of jurisdiction over the claim. (Lepkowski v State of New York, 1 NY3d 201, 206-207 .) Accordingly, the Court has no alternative but to dismiss the claim.
Even if the Court were to find that claimant's notice of intent and claim met the statutory pleading and timing requirements, his claim would be dismissed on substantive grounds. Although claimant frames his claim as one for medical negligence, it is not. "[T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and 'no rigid analytical line separates the two' " (Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 , quoting Scott v Uljanov, 74 NY2d 673, 674 ). The test is whether medical judgment is required when providing treatment. A claim for medical negligence lies when a state actor simply failed to either follow a medical order or apply standards of ordinary care. A claim sounds in medical malpractice when the acts or omissions entail the utilization of medical judgment (Martuscello v Jensen, 134 AD3d 4, 11 [3d Dept 2015]; see Weiner v Lenox Hill Hosp., 88 NY2d at 788; Moore v St. James Health Care Ctr., LLC, 141 AD3d 701, 702 [2d Dept 2016]). Since claimant's allegations "substantially related to medical diagnosis and treatment, the cause of action they give[ ] rise to is by definition one for medical malpractice rather than for simple negligence." (Talley v State of New York, 175 AD3d 1078, 1079 [4th Dept 2019] [internal quotation marks and internal citations omitted].) The Fourth Department shed further light in Talley opining that "[i]ssues concerning whether the treatment deviated from the accepted standard of care and whether it caused injuries are not matters within the ordinary experience and knowledge of laypersons. (Sachs v State of New York, 143 AD3d 1291, 1291 [4th Dept 2016], lv denied 28 NY3d 914 , quoting Mosberg v Elahi, 80 NY2d 941, 942  )." (Id [internal quotation marks omitted].) Likewise, a medical indifference claim turns "on an assessment of the adequacy of the medical care provided" that necessitates testimony by an expert. (Morrishaw v State of New York, UID No. 2013-049-108 [Ct Cl, Weinstein, J., Aug. 8, 2013][internal citation omitted]; see McCain v State of New York, UID No. 2014-049-035 [Ct Cl, Weinstein, J., June 10, 2014]; see also Matter of Wooley v New York State Dept. of Correctional Servs.,15 NY3d 275, 282 .)
Here the defendant has moved unopposed for summary judgment, which motion was supported by the medical opinion of neurologist Dr. Robert Knapp and the claimant's pertinent medical records. The burden of proof upon a defendant moving for summary judgment in a medical malpractice action has long been settled and requires it to establish " the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby." (Bubar v Brodman, 177 AD3d 1358, 1359 [4th Dept 2019] [internal quotation marks and citations omitted]; see Bristol v Bunn, 189 AD3d 2114, 2116 [4th Dept 2020]). Here, defendant met its initial burden on the motion by establishing the nonexistence of a departure from the accepted standard of care. (see Bristol, 189 AD3d at 2116; Bubar, 177 AD3d at 1360.) After conducting a medical record review of claimant's medical records, Dr Knapp's decisive findings included that:
-There was no evidence of a tumor as alleged by claimant but, rather, a small hemangioma of no clinical significance;
-A majority of patients with a lumbar disc herniation respond to conservative treatment that includes rest, physical therapy, anti-inflammatory medications and/or steroids;
-Back surgery was not indicated because claimant's EMG examination was normal in the legs ruling out significant nerve root compression;
-Although his nerve conduction studies were notable for loss of sensory potentials in the legs, this condition was consistent with diabetic neuropathy and explained by his diagnosis and treatment for diabetes, which opinion was shared by outside doctors;
-Outside doctors also did not believe surgery was indicated by claimant's condition;
-Defendant's medical care and treatment for claimant's lumbar disc abnormalities "was appropriate and did not deviate from community standards for this condition."
(affirmation of defendant's counsel, ex. I at 4.)
Accordingly, the burden shifted to claimant to raise an issue of fact by submitting an expert's affidavit establishing such a deviation. (see Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 ; Camuglia v Page, 192 AD3d 1689, 1689-90 [4th Dept 2021].) Claimant's general and conclusory allegations of medical negligence unsupported by admissible evidence establishing the requisite elements of medical malpractice or medical indifference are insufficient to raise a material question of fact to defeat a provider's summary judgment motion. (see Alvarez, 68 NY2d at 325 .) Here, claimant failed to oppose the motion or provide the required expert testimony, which entitles defendant to a judgment dismissing the claim. Moreover, nothing in his medical records reflects that the defendant treated him with deliberate indifference. To the contrary, claimant was seen by the infirmary physicians on several occasions receiving conservative treatment. When he was evaluated by outside physicians at Erie County Medical Center, they similarly adopted a conservative approached and did not determine surgery was indicated. His EMG examination was normal and diabetic neuropathy was found to be the cause of his notable loss of sensory potentials in his legs, which was the opinion of claimant's own doctor.
In light of the above, defendant's application to preclude claimant from introducing any expert testimony at trial is denied as moot.
Accordingly, defendant's motion to dismiss and/or for summary judgment (M-96754) is granted and Claim No. 129271 is dismissed with prejudice.
July 28, 2021
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims