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In support of his motion for late service of a notice of claim,

This is a medical malpractice case filed against the defendant hospital because of the negligence committed by its employees during plaintiff’s birth in September 1993. According to the hospital records, the medical employees in attendance gave his mother Pitocin, a drug used to facilitate the birth. The delivery involved two attempts at vacuum extraction and, ultimately, the use of forceps. Records show that the mother’s pelvis was adequate to accommodate the baby’s head and the birth was without complication. The infant weighed 8 pounds, 3½ ounces. His Apgar score was within satisfactory range: eight at one minute after birth and nine at five minutes after birth. The records also reveal that there were marks on his forehead from the forceps and his clavicle was broken. Because of the foregoing, plaintiff is presently suffering from epilepsy and developmental disabilities.

The record reveals that in 1995 plaintiff had an electroencephalogram (EEG), a test to trace his brain waves. The results were normal, but EEGs in 1998 and 1999 showed signs of abnormality. On September 5, 2003, 10 years after plaintiff’s birth, his counsel sent defendant hospitals in Nassau and Suffolk a notice of claim alleging, in essence, that plaintiff suffered brain injury resulting from the hospital’s malpractice during his delivery.

In support of his motion for late service of a notice of claim, plaintiff argued that section 50-e (5) contemplates “actual knowledge of the essential facts constituting the claim,” not knowledge of a specific legal theory, and because defendant hospital is in possession of the medical records, they necessarily have actual knowledge of the facts constituting the claim. Plaintiff further argued that the delay in the service of claim was a product of his infancy.

In General Municipal Law § 50-e, the Legislature enacted a protocol for serving a notice of claim as a condition precedent to a suit against a public corporation. Section 50-e (1) requires that the notice be served within 90 days after the claim arises. The Legislature, however, gave courts discretion to extend the time and devised criteria for determining whether to grant extensions.

Section 50-e(5), the late-notice statute, directs the court to consider, in particular, whether within 90 days or a reasonable time thereafter the public corporation (or its attorney or insurance carrier) acquired actual knowledge of the facts underlying the claim. In deciding whether to grant an extension, the court must also consider a host of factors, including infancy and whether allowing late filing would result in substantial prejudice to the public corporation.

The hospital’s records revealed that the delivery was difficult, but that when it was over, there was scant reason to identify or predict any lasting harm to the plaintiff, let alone a developmental disorder or epilepsy. The plaintiff’s Apgar scores were satisfactory and even two years, later plaintiff’s EEG was normal.

The Court held that, under these circumstances, defendants could well have concluded that when plaintiff left the hospital there was nothing wrong with him beyond a broken clavicle. Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process. Since there is little to suggest injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim.

With respect to Plaintiff’s other contention, A delay of service caused by infancy would make a more compelling argument to justify an extension. Conversely, the lack of a causative nexus may make the delay less excusable, but not fatally deficient. It all goes into the mix. The Court pointed out that, among other reasons for denying an extension such as lack of actual knowledge, the delay in the service of notice of claim was not the product of plaintiff’s infancy.

The law contains a non-exhaustive list of factors that the court should weigh, and compels consideration of all relevant facts and circumstances, to sustain or deny grants of permission for late filing. This approach provides flexibility for the courts and requires them to exercise discretion.

In view of the foregoing, Plaintiff’s claim was denied by the Court.

We understand how painful it is to be wronged by another person’s act. Stephen Bilkis and Associates with its New York Birth Injury Lawyers can provide you assistance during your difficult times. It has offices situated in New York Metropolitan area, including Corona, New York.

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