This malpractice case was filed against defendant more than nine year’s after plaintiff’s birth. Accordingly, the medical malpractice was allegedly committed by defendant in connection with the birth of plaintiff on November 2, 1996, from pre-natal care up to his discharge from the hospital on November 9, 1996. Consequently, plaintiff sustained perinatal asphyxia affecting his brain which manifested as cognitive developmental delays, hyperactivity, coordination difficulties, seizures and mental retardation.
A condition precedent to commencement of a tort action against a municipality or public corporation is the service of a notice of claim upon the municipality or public entity within 90 days after the claim arises. The notice of claim herein was served upon defendant almost nine years past the ninety-day deadline for filing a notice of claim.
The Court has the discretionary authority to allow the filing of a late notice of claim within the period of limitation for commencing tort actions against a municipality. An action against a municipality or municipal corporation or entity must be commenced within one year and 90 days after the date plaintiff’s cause of action accrued, which is the date the event occurred upon which plaintiff’s claim is based. Where plaintiff is an infant, the statute of limitations on a medical malpractice action is tolled for a period not exceeding 10 years from the date the cause of action accrued.
In the exercise of its discretionary power to allow a late notice of claim, the Court is directed by General Municipal Law § 50-e(5) to consider, in particular, whether the municipality or municipal entity acquired actual knowledge of the facts underlying the claim within the initial 90-day period or within a reasonable time thereafter. The Court must also consider “all other relevant facts and circumstances”, including infancy and whether the delay would cause substantial prejudice to the municipality or public entity.
Although the hospital records clearly show that plaintiff had suffered respiratory distress when he was born, there is nothing in those records submitted on this motion that indicate that plaintiff suffered any of the injuries alleged so as to constitute notice to defendant of the facts upon which the claim is based. The records reveal no indication that plaintiff either at the time of his discharge or upon follow-up visits to Elmhurst Hospital showed signs of brain damage or other impairment. Moreover, neither the hospital records nor the affirmations of plaintiff’s physicians indicate that perinatal asphyxia necessarily results in brain damage that subsequently manifests itself in cognitive and developmental disorders or hyperactivity.
Plaintiff’s physicians found cognitive/educational and motor coordination delays but no positive diagnosis of ADHD, mental retardation or seizures. Also, there is no finding of any brain injury. Therefore, the conclusions in the reports that plaintiff’s injuries were caused by perinatal asphyxia are speculative. There is no medical evidence of injury and the reports of plaintiff’s examining physicians did not find a causal connection between plaintiff’s observed delays and his respiratory distress at birth.
Actual knowledge based upon hospital records may not be found absent a clear showing of a nexus between the alleged malpractice and the injuries. Although the affidavits of plaintiff’s physicians opine, nine years after the fact, that plaintiff’s developmental, behavioral and cognitive disorders were the result of asphyxia caused by malpractice in his delivery, there is no showing that defendant derived actual knowledge of such facts within 90 days after plaintiff’s birth or a reasonable time thereafter by virtue of their possession of the hospital records, since these records do not show that plaintiff sustained any developmental, behavioral or cognitive damage as a result of asphyxia.
Indeed, plaintiff’s own examining physicians, with knowledge that plaintiff was born in a state of respiratory depression and was diagnosed with perinatal asphyxia, did not ascribe a causal connection between such perinatal asphyxia and his delays. If it was not obvious to plaintiff’s own examining physicians in 2000 and 2004 that plaintiff’s perinatal asphyxia was a potential cause of his delays and possible ADHD, it would certainly be unreasonable to conclude that the hospital, at the time of his birth in 1996, had actual knowledge that his perinatal asphyxia would likely cause his subsequent alleged injuries.
Plaintiff failed to establish that defendant had actual knowledge of the facts underlying the claim within 90 days after plaintiff’s delivery or a reasonable time thereafter.
Under the totality of the circumstances, it would be an improvident exercise of this Court’s discretion to allow the filing of a notice of claim at this late juncture.
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