|Claimant(s):||ANGELA GIANNOTTI and JOHN GIANNOTTI|
|Claimant short name:||GIANNOTTI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Ordered, that the Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant.|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||Marc J. Bern & Partners, LLP.
By: Leigh Bernstein, Esq.
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Mario E. Simmons, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 22, 2021|
|See also (multicaptioned case)|
Movant Angela Giannotti moves for permission to file and serve a late claim alleging a cause of action for medical malpractice. Movant John Giannotti asserts a cause of action for loss of consortium.
The proposed claim states that Ms. Giannotti underwent a total vaginal hysterectomy (TVH) on July 3, 2020 at Stony Brook University Hospital. The proposed claim alleges that defendant, through its agents, negligently, carelessly, and recklessly deviated from good and accepted surgical and gynecological care by failing to perform the TVH in a safe manner; failing to protect movant's anatomical structures during the TVH, resulting in iatrogenic injury; causing a laceration to movant's vaginal cuff during performance of the TVH; failing to identify the vaginal cuff injury during the performance of the TVH; and allowing movant to bleed internally due to the vaginal cuff injury, resulting in hemoperitoneum and necessitating a second emergency surgery to control the postoperative bleeding.
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 ). These factors are: (1) whether the delay in filing the claim was excusable; (2) whether the state had notice of the essential facts constituting the claim; (3) whether the state had an opportunity to investigate the circumstances underlying the claim; (4) whether the state was substantially prejudiced; (5) whether the movant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10 ). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 ). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the movant's application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).
Before addressing the six statutory factors, the Court must determine whether movants' causes of action is timely under CPLR Article 2 (Court of Claims Act § 10 ). Movants' cause of action accrued on July 3, 2020 and the two years and six months statute of limitations applicable to actions for medical malpractice applies (CPLR 214-a). As movants filed the instant motion on May 17, 2021, it is timely under CPLR 214-a.
Turning then to the first factor in the Court's late claim analysis, movants attribute the delay in filing the claim to counsel's office closure due to the Covid-19 pandemic and counsel's subsequent diagnosis of Covid-19. Counsel's Covid-19 infection caused symptoms that lasted for several months. Specifically, counsel avers that the physical office location of counsel's firm was closed due to the Covid-19 pandemic at the time that movants retained counsel. The retainer agreement was executed on September 1, 2020, but was not received in counsel's office until December 17, 2020. Thereafter, counsel was diagnosed with Covid-19 after suffering symptoms for weeks. Counsel continued to experience the effects of Covid-19 until April 26, 2021, at which time counsel returned to the office. The instant late claim application was filed on May 17, 2021, less than a month after counsel returned to the office. Given the extraordinary circumstances presented by the ongoing Covid-19 pandemic and counsel's Covid-19 diagnosis, the Court finds movants' excuse is reasonable and this factor weighs in favor of movants.
The next three factors--defendant's notice of the issues, opportunity to investigate, and prejudice--are interrelated and therefore frequently considered together. Here, movants argue that defendant had notice of the essential facts constituting the claim because defendant's employee performed the TVH and participated in the second emergency surgery following the TVH. Given the facts and circumstances surrounding the surgery, movants argue that defendant had an opportunity to review Ms. Giannotti's medical chart and defendant would not be prejudiced if the Court were to allow movants to file and serve a late claim. Defendant does not offer any arguments to refute movants' arguments as to these three factors. Therefore, the three aforementioned factors weigh in movants' favor (see Davis v State of New York, UID No. 2018-032-20 [Ct Cl, Hard, J., Mar. 23, 2018]).(2)
The fifth factor to be considered is whether movants have an alternative remedy for relief. Defendant argues that movants, who are in possession of Ms. Giannotti's operative reports, are able to identify the doctors who allegedly committed medical malpractice and can sue these doctors individually in Supreme Court. Notably, movants have not put forth any allegation of negligence against the hospital apart from the allegations concerning Ms. Giannotti's medical treatment and care, such as inadequate staffing or the improper issuance of physician's privileges. Accordingly, the Court agrees that movants have an alternative remedy available by bringing an action against the doctors in Supreme Court (cf. Stirnweiss v State of New York, 186 AD3d 1444, 1447 [2d Dept 2020]; see Sears v State of New York, UID No. 2020-058-019 [Ct Cl, Leahy-Scott, J., Feb. 24, 2020]). Therefore, this factor does not weigh in movants' favor.
Turning then to the final factor, in order to establish a meritorious cause of action, movants must establish that their claim is not "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, 834 [Ct Cl 2003]; see Court of Claims Act § 10 ; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). "While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require [m]ovant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [him] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).
Defendant argues that movants have failed to establish the appearance of merit of the proposed claim because they have failed to submit an expert medical affidavit to support the allegations contained in the proposed claim. Movants argue that the allegations contained in the proposed claim are supported by the two operative reports attached as exhibits to the motion and that they have thus far been unable to obtain Ms. Giannotti's entire medical file from Stony Brook University Hospital.
Here, to prove that the State breached its duty to provide reasonable and adequate medical care, movants must establish by a preponderance of the credible evidence that the State departed from good and accepted standards of care and that such departure was a substantial factor or a proximate cause of the alleged injuries (see Knight v State of New York, 127 AD3d 1435, 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 ). Additionally, where medical issues are not within the ordinary experience and knowledge of lay persons, an expert medical opinion is required to establish that the State's alleged negligence caused or contributed to Ms. Giannotti's injuries (see Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]).
Here, the Court has reviewed the operative reports submitted by movants and finds that the operative reports alone are insufficient to establish the appearance of merit of the proposed claim. "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" (DiValentino v State of New York, UID No. 2020-038-565 [Ct Cl, DeBow, J., Nov. 4, 2020], citing 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]). The late claim motion must also present 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 [3d Dept 2000]). The operative report dated July 3, 2020 describes the surgical process of Ms. Giannotti's TVH. The July 4, 2020 operative report describes the emergency surgery that took place on the day after the TVH. The preoperative and postoperative diagnosis of Ms. Giannotti's condition on July 4, 2020 is "postoperative bleeding with hemodynamic instability" (Affirmation in Support, Exhibit B). The diagnosis and subsequent operative discussion for the July 4, 2020 surgery do not connect Ms. Giannotti's condition to an injury inflicted during the July 3, 2020 TVH, as is alleged in the proposed claim. The July 4, 2020 report is devoid of any information that connects Ms. Giannotti's condition on July 4, 2020 to the negligent acts alleged in the proposed claim. Thus, the operative reports do not establish the elements necessary for the Court to find that the claim appears meritorious, and the Court finds that this factor does not weigh in movants' favor (see Jolley v State of New York, 106 Misc 2d 550, 551 [Ct Cl 1980] [physician's affirmation attesting to the existence of medical malpractice was insufficient to establish merit of proposed claim]). The Court notes that movants are not precluded from filing a second late claim application with a proper affidavit in support of the proposed claim.
Upon balancing all of the factors in Court of Claims Act § 10 (6), it is hereby
ORDERED that movants' motion for permission to file and serve a late claim (M-96810) is DENIED without prejudice.
September 22, 2021
Hauppauge, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims
2. Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.