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On 10 October 1956, an infant who was about fifteen months old

On 10 October 1956, an infant who was about fifteen months old, while at home, suffered severe burns for which the defendants bear no responsibility. The infant was taken first to his family’s doctor who advised that he be taken to a hospital. The infant was then hospitalized at Kings County Hospital in Brooklyn.

On 11 October 1956, at 8:15 a. m., about thirteen hours after the infant was admitted to the hospital, he appeared to be unconscious and slightly cyanotic. Cyanosis is a condition in which the skin becomes blue, as a result of insufficient oxygen in the blood, or due to a malformation of the heart. The mother of the infant plaintiff, with respect to her son’s condition before he was admitted to Kings County Hospital, states that the boy was about a year old when he began to talk, that he started to walk at eleven months, fed himself and ate very good; however, when she took him home from the hospital, the infant could not walk, could not talk, did not respond when spoken to, and that his body still had jerky movements. The infant couldn’t hold up his head erect. It keeps bobbing, and he was not the same boy.
Consequently, a personal injury action for medical malpractice has been instituted. The defendants are the City of New York and Kings County Hospital. However, only the action against The City of New York went to the jury. The action against Kings County Hospital was dismissed during the trial.

At the trial, the infant had reached the age of about 5 years and 9 months but was unable to walk, talk, sit, feed, or care for himself in any way.

The substance of the medical testimony elicited at the trial on behalf of the plaintiffs was that the defendant failed to care properly for the infant, particularly during his first twelve hours in the hospital, that, as a consequence, the infant lapsed into irreversible shock which caused his brain to become damaged from lack of oxygen and that the infant’s failure to develop physically and mentally and his present physical and mental condition are a direct result of the defendant’s malpractice or failure to treat the infant properly.

Subsequently, there were two verdicts, one for $150,000 in favor of the infant plaintiff, the other for $45,000 in favor of the infant’s father for medical expenses and loss of services.
The Issue:

Is defendant liable to infant plaintiff and plaintiff father? Was the court’s decision proper?

The Ruling:

General Municipal Law provides, inter alia, that in any case founded upon tort where a notice of claim is required as a condition precedent to the commencement of an action against a public corporation, such notice of claim shall be given within ninety days after the claim arises.
Here, the plaintiffs themselves agree that the provisions of the aforesaid statute are applicable to the instant action. The chronology of the dates upon which there transpired events important to a determination of whether plaintiffs filed their notice of claim on time are: 10 October 1956, the infant plaintiff was admitted to Kings County Hospital; 11 October 956, the day on which the infant plaintiff succumbed to irreversible shock, after which, the jury could have found, the child never again was able to stand, walk, talk or respond to attempts to communicate with him; 22 April 1957, 27 April 1957, 5 May 1957 and 25 November 1957, all dates upon which it was alleged by the plaintiffs, the defendants were guilty of continuing and additional acts of malpractice. With respect to these four dates, the most important date as far as a determination of the motion is concerned, is the last, i. e., 25 November 1957. Plaintiffs’ attorney himself admits that the defendants were guilty of no malpractice after this date which, as will shortly be seen, was more than ninety days before plaintiffs’ notice of claim was filed. On 14 February 1958, the infant plaintiff was discharged from Kings County Hospital. On 10 April 1958, a notice of claim was served upon the City of New York.

As stated, the law requires that the notice of claim be filed within ninety days after the claim arises. All of the dates stated above are more than ninety days before the claim was filed except 14 February 1958, the day on which the infant plaintiff was discharged from Kings County Hospital.

Thus, the question to be resolved is when the claims of the plaintiffs arose. If they arose on 11 October 1956 when the boy went into irreversible shock, or on 22 April 1957, 27 April 1957, 5 May 1957, or 25 November 1957, the dates upon which plaintiffs contend the defendants committed continuing and additional acts of medical malpractice, then plaintiffs’ notice of claim was late. If plaintiffs’ claims arose on 14 February 1958, the day the infant was discharged from Kings County Hospital, plaintiffs filed their claims on time.

At this juncture, the court equates the day a patient is discharged from a hospital with the day a doctor last treats a patient. As a result, it is held that the 90 days within which a claim had to be filed on behalf of the plaintiffs started to run on 14 February 1958, the day the infant was discharged from Kings County Hospital. Hence, the claim was filed well within that time, on 10 April 1958. This is consonant with the objectives sought to be obtained through the enactment of the General Municipal Law. In its Tenth Annual Report and Studies, in the supporting study entitled “Recommended Improvements and Unification of Requirements of Notices of Claim against Municipal Corporations”, the Judicial Council stated that the requirement of notice is one of the safeguards devised by the law to protect municipalities against fraudulent and stale claims for an injury to person and property. It is designed to afford the municipality opportunity to make an early investigation of the claim while the facts surrounding the alleged claim are still fresh. On the other hand, these provisions were not intended as a trap for the unwary and the ignorant.’

In sum, the motion to set aside the verdicts on the ground that the plaintiffs’ notice of claim was not served in time is denied.

On another note, there is more merit to the motion to set aside the $45,000 verdict for the plaintiff father on the ground that it is excessive. The proof was that the amount of the hospital bill rendered to the plaintiff father by the City of New York was in the sum of $11,868. The $45,000 verdict in favor of the plaintiff father for medical expenses and for loss of services is excessive and that cause of action is severed and a new trial granted on that cause of action unless within 30 days after the decision appears in the New York Law Journal, the plaintiff father shall stipulate to reduce the verdict in his favor to $17,500.

When there is negligence in the duty of care of medical practitioners to their patients, these medical practitioners could be held liable for damages as a result of their action or inaction. For legal advice on a situation like this, a Kings County Personal Injury Lawyer, particularly, a Kings County Medical Malpractice Attorney from Stephen Bilkis & Associates could prove helpful. With our legal professionals’ extensive training and experience in litigation or trial practice, they have acquired exceptional skills that would make them competent enough to give you the best legal advice and representation. Contact us now for a consultation. It’s free of charge.

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