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Claimant moves to serve a late notice of claim – Clark v. Roswell Park Cancer Inst. Corp., 2010 N.Y. Slip Op. 20551 (N.Y. Ct. Cl., 2010)


The issue in this medical malpractice case is whether the plaintiff/claimant has met the burden of showing why the court should permit him to serve a notice of claim even though the 90-day timeframe has expired. Under New York law, before a plaintiff has the legal right to file a lawsuit against a municipal or governmental entity, it must first serve a notice of claim on the entity. The law requires that the notice of claim is served within 90-days of the incident that forms the basis for the claim.

The claimant seeks to recover damages from defendant Roswell Park Cancer Institute for negligent care that resulted in the claimant having to undergo multiple additional surgeries and an extended recovery period. Roswell is a public corporation, operated by the State of New York. The claimant went to Roswell to have a cancerous mass surgically removed from his lower colon. A few days after the surgery, the claimant was diagnosed with an anastomotic leak to his surgical site. As a result, he had to undergo surgery to repair the leak. Because of the anastomotic leak and complications that resulted from the leak, the claimant had to undergo a colostomy and multiple other surgeries and had to remain at Roswell for over a month. He continued to receive treatment at Roswell and another facility for several additional months.

The claimant failed to timely serve notice of claim, and now seeks leave to serve a late notice of claim. The defendant opposes the claimant’s motion on a variety of grounds. 1). The claimant has not demonstrated a reasonable excuse for not timely serving the noticed; 2). The defendant’s lack of actual or constructive knowledge of the facts on which the claim is based; and 3). The defendant’s case was prejudiced because of the lack of notice.

An important reason for the 90-day rule is so that the defendant will have the opportunity to investigate a claim and gather testimony and evidence while it is still fresh. Thus, first, the court considered whether the defendant had actual or constructive knowledge of the facts on which the claim is based within 90 days of the incident. If the defendant had knowledge of the potential for the claim, then the purpose of the 90-day rule was not circumvented by the plaintiff’s failure to timely serve the notice of claim.

The court determined that Roswell clearly knew about the incident since its employees performed the initial surgery and treated the anastomotic leak and other complications. Roswell’s records reflect that the claimant’s doctors were concerned about the post-surgical complications. The court gave great weight to the hospital’s timely knowledge of the complications. The defendant hospital argued that the mere possession of the claimant’s records is not enough to establish notice. The court disagreed. The court concluded that the hospital failed to offer any testimony that the records do not provide the defendant notice that its staff caused the claimant’s injuries.

The claimant also contends that he had a good reason for the delay—his poor health following his discharge from Roswell, followed by months of rehabilitation and recovery. While the court agreed that his poor health explained why the claimant was not able to meet the 90-day deadline, it does noes not explain why there was an additional 10-month delay after the claimant completed rehabilitation. While the court found the claimant’s excuse for the extended delay to be weak, the court also noted that the absence of a sufficient excuse is not fatal for the claimant’s case since the hospital did have actual notice of the facts that constitute the claim.

Another factor that the court considered is whether the defendant’s case was prejudiced because of the delay. While neither party directly addressed the issue of prejudice since each party thought the other party had the burden of establishing lack of prejudice to the defendant, the claimant did state that the fact that the defendant had actual notice of the claim is also evidence that the defendant was not prejudiced by the delay in serving the notice of claim. The court agreed.

The court granted the claimant’s motion.

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