|Claimant(s):||ROBERT HAYES, IV., AND CHRYSTAL TIRADO INDIVIDUALLY AND AS NATURAL PARENTS OF M.R.H.-T, AN INFANT UNDER THE AGE OF 10 YEARS|
|Claimant short name:||HAYES|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has amended the caption to reflect the only proper defendant.|
|Judge:||RAMÓN E. RIVERA|
|Claimant's attorney:||ROBERT F. JULIAN, P.C.
By: Robert F. Julian, Esquire
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Maureen MacPherson, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 3, 2021|
|See also (multicaptioned case)|
Movants, the natural parents of the infant, M.R.H.-T, bring this late claim application individually and on behalf of their infant daughter(2) , pursuant to Court of Claims Act section 10 (6). Movants seek permission to file and serve a claim for damages for personal and economic injuries to their infant daughter and their own economic injuries due to the State's alleged medical malpractice. Defendant opposes the motion. After considering all of the submissions, the Court grants movants motion.
Movants allege in the proposed claim and supporting documents that the State was negligent in providing medical care to their two-week old infant daughter, when in the early morning on April 26, 2019, movant, Chrystal Tirado, brought her to Upstate Medical University Hospital, Golisano Children's Hospital in the City of Syracuse because she was exhibiting symptoms of a seizure. After arrival at the hospital, medical personnel evaluated her symptoms and performed a lumbar puncture, suspecting that the infant had meningitis. At 7:30 a.m. a nurse placed an IV into the infant's right foot, drawing blood, and administering medication to treat the suspected infection. Sodium-chloride was also administered by a 80 cc bolus intravenously. Additional medication to treat the infection was thereafter also administered through the intravenous line in her right foot. Movants allege that the medical staff failed to assess that the IV was properly infusing, and despite the medical records reflecting assessments of the "peripheral IV" in the infant's right foot, it wasn't until 8:00 p.m. that evening when a nurse noted that the right foot was infiltrated, "edematous", cool, and white (proposed claim page 28, paragraph 111). The IV line was removed at that time. The infant suffered second and third degree burns to her right foot, and Movants allege that the delay in getting the medication to treat the meningitis into her circulatory system resulted in further injury from the infection. Movants allege the infant suffered conscious pain and suffering, permanent disfigurement, limited ability for independent care, will now require special education, she will need additional surgical procedures and medical treatment, and she has suffered a shortened life expectancy. Movants also allege on their own behalf that their personal and professional lives have been changed due to the constant care needed by the infant, they have suffered a loss of past and future income, increased medical expenses, and they are unable to perform household duties and work (proposed claim paragraph 178 [a] through [k]).
When a proposed claimant has failed to timely file and serve a claim, the Court in its discretion may permit a claim to be late filed. The application must be timely, that is brought before the expiration of the CPLR statute of limitations, and supported by a proposed claim that complies with section 11 of the Court of Claims Act (Court of Claims Act section 10 ). Here movant's application is timely and a proposed claim meeting the requirements of Court of Claims Act section 11 has been submitted (see, Court of Claims Act section 10 (6) , CPLR 214-a).
To determine whether the application for permission to file a late claim should be granted, the Court will consider the six factors listed in Court of Claims Act section 10 (6), and any other relevant factors. No one factor is determinative, it is a balancing of all of the factors in the discretion of the Court that may warrant the granting of the application (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). The proposed claimant bears the burden to persuade the Court that the statutory factors weigh favorably for granting the application (see, Tucker v New York State Thruway Auth. 175 AD3d 632, 633 [2d Dept 2019]; Decker v State of New York, 164 AD3d 650 [2d Dept 2018]; Fernandez v State of New York, 43 Misc 3d 1221 [A] [Ct Cl 2014]).
The first factor is whether the proposed claimants have an acceptable excuse for failing to timely file and serve a claim. In the Movants' submissions, they assert that their delay in bringing the claim is excusable because immediately after the alleged malpractice they were trying to care for their injured baby, and make appropriate accommodations for her care and treatment. Additionally, they allege that they made several efforts to obtain the full medical records for the infant's care, and were not promptly provided with all of the records until January 2021. The failure to provide all of the records impeded their ability to determine the potential merit of their claim and prepare the documents necessary to bring the motion.
The infant was released from the hospital on May 24, 2019. This application was brought 23 months later on April 29, 2021. The consuming nature of caring for this infant upon her release from the hospital is understandable, and the Court finds an excusable delay for the critical time frame following the alleged malpractice (see, Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]). There was also a significant delay in bringing this application. Movants initially sought the infant's medical records in September 2019, and then many months later counsel sought the records on October 6, 2020, following up in November 24, 2020 and December 21, 2020. Any inexcusable delay related to bringing the claim, or making this application, is only one factor for consideration (see, Casey v State of New York, 161 AD3d 720, 721 [2d Dept 2018]).
Turning to the next three factors- whether the State had notice of the facts underlying the proposed claim, whether it had an opportunity to investigate the facts, and whether it will suffer prejudice if the application is granted, will be considered together (see, Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]; Caro v Ibrahim, 53 Misc 3d 1217 [A], [Ct Cl 2016]). Movants assert that these factors weigh in favor of granting their application because the hospital knew on April 26, 2019 that the infant's IV had "extravasated and flowed inappropriately into her tissue burning her" and the antibiotics and other medication prescribed to treat the serious condition of meningitis were not successfully administered (Hayes and Tirado Affidavit, page 2, paragraph 6). The hospital treated the infant for the burn to her foot, and she was hospitalized from April 26, 2019 until May 24, 2019.
Defendant in opposition argues that the existence of medical records alone does not put the State on notice of the facts underlying the proposed claim (MacPherson Affirmation in Opposition paragraph 7). Although, as Defendant notes, the mere existence of medical records does not place the State on notice of the facts underlying a claim and prompt an investigation normally, here the alleged facts reflect that a newborn infant suffered second and third degree burns to her foot requiring surgery, due to the improper placement and/or monitoring of the IV site. These facts, as alleged, would seem to demand some review of the care provided. Moreover, the medical records will allow Defendant to investigate now, and Defendant alleges no prejudice (see, Bost v State of New York, UID No 2013-041-001 [Ct Cl, Marin, J. January 4 2013]). As a result, the Court concludes that these factors weigh in favor of granting the application.
The next factor, whether the claim appears to be meritorious, is often considered the most essential factor. Unlike a party who has timely filed a claim, the movant seeking permission to file a late claim must demonstrate that the proposed claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). Generally a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Movants attach the affirmation of Robert Todd, M.D., a physician board certified in Neurology by the American Board of Psychiatry and Neurology. He was a licensed pharmacist before he attended medical school, and after medical school he completed an internship in Internal Medicine at the hospital that is the subject of this proposed claim. Dr. Todd sets forth the chronological care of the infant based upon the medical records from her presentation on April 26, 2019 in the Emergency Room. Dr. Todd opines that it was a deviation from the standard of care to place an IV in the infant's foot without checking the placement at least hourly, and this breach caused the infant to suffer a serious burn injury. It also delayed treatment of the meningitis which he opines caused serious neurological compromise and brain injury. Defendant concedes that movants have met their burden on this motion. This factor weighs in favor of movant's application.
The final factor to be considered is whether movant has any other available remedy. As Defendant suggests, Movants may have individual causes of action against the individual doctors who treated the infant.
Upon balancing all of the factors, the Court finds Movants' application should be GRANTED. Movants are directed to file and serve the proposed claim(3) in accordance with the Court of Claims Act section 11 within 30 days of the date this Decision and Order is filed with the Clerk of the Court(4) . Movants must also pay the filing fee or make a proper application or certification in accordance with Court of Claims Act section 11-a.
December 3, 2021
Syracuse, New York
RAMÓN E. RIVERA
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Movants Notice of Motion, dated April 22, 2021;
2) Affirmation of Robert F. Julian, Esquire, dated April 21, 2021 with Exhibits A and B attached thereto;
3) Affirmation of Robert E. Todd, M.D., dated April 22, 2021;
4) Affidavit of Robert Hayes, IV and Chrystal Tirado, sworn to on April 20, 2021 and April 22, 2021, respectively;
5) Movants Memorandum of Law, dated April 22, 2021;
6) Affirmation in Opposition of Maureen MacPherson, Esquire, dated July 27, 2021.
2. The Court notes that the claim on behalf of the infant is timely, as her causes of action are tolled due to her infancy, and this late claim application is unnecessary in relation to her causes of action (see Court of Claims Act section 10 ; CPLR 208). Yet, since movants' causes of action, which are not tolled, arise from the infant's injuries and damages and were included together in this application, the Court has considered all of the submissions.
3. The caption of the proposed claim should be amended to reflect the "State of New York" as the only proper Defendant before filing and serving the proposed claim in accordance with this Decision and Order.
4. Although Movants on April 22, 2021 filed the identical claim (Claim No. 136282) as submitted herewith as the proposed claim, and also served Defendant, they are directed to re-file and re-serve the claim in accordance with this Decision and Order.