Infant plaintiff alleges that he sustained injury due to respondent’s medical malpractice. The injury was in connection with his birth, pre-natal and post-natal up to his discharge. He sustained perinatal asphyxia, which manifested as a cognitive developmental delays, coordination difficulties, seizures, hyperactivity, and mental retardation.
According to General Municipal Law, for him to commence an action based on torts against a municipality or public corporation he must serve first a notice of claim upon the municipality or public entity within 90 days after the claim arises. But the notice of claim was served upon defendant Hospital for almost nine years past the ninety-day deadline for the filing of a notice of claim.
Under the same law, according to a New York Injury Lawyer, the court is given the discretion to allow the filing of a late notice of claim within the period of limitation for commencing tort actions against municipality provided that the action must commenced within one year and ninety days after the date plaintiff’s cause of action accrued.
Since the 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. The serving of the notice of claim has been brought less than ten years, making the application timely.
A Long Island Personal Injury Lawyer said that in the exercise of the discretionary power of the court to allow a late notice of claim, it must consider all the other relevant facts and circumstances, including infancy and whether the delay would cause substantial prejudice to the municipality or public entity.
Plaintiff argues that defendant Hospital having the medical records of the plaintiff, had the actual knowledge of the facts, and since having the knowledge, defendant would be prejudiced by a late notice of claim. However, a Suffolk County Personal Injury Lawyer said that based on jurisprudence, hospital even having in their possession the medical records, do not establish actual knowledge of a potential injury or medical malpractice. Where the records do not show that the medical staff inflicted any birth injury on plaintiff during the birth process, it cannot be established that there is actual knowledge on defendant hospital’s part.
The records show that plaintiff due to his large size labor failed to progress and caesarean section has to be performed. He was depressed at birth and was suffering from perinatal asphyxia. When he was discharged, he was diagnosed with a perinatal depression and clinical sepsis. Plaintiff had a very difficult birth. However, there is no showing that he suffered from any of the injuries or showed signs of brain damage or any other impairment which he is alleging to constitute the grounds upon which he based his claim against the defendant Hospital. Plaintiff contends that, according to his physicians, the perinatal asphyxia was a result of waiting too long to perform and emergency C-section. Medical records and even the plaintiff physician do not affirm that perinatal asphyxia will not lead or result to brain damage.
Many tests were done to the plaintiff. He showed delays in language and speech, socialization and visual motor coordination, and signs of ADHD. But, these disorders do not result from perinatal asphyxia. Based on the tests conducted by physicians, there is no finding that any casual connection between the plaintiff’s delays and his perinatal asphyxia at birth exists. The record on this motion fails to establish that the defendant had actual knowledge of the facts underlying the claim.
More than nine years have passed since the birth of plaintiff, but no action was filed. Plaintiff’s mother avers that she was preoccupied with caring for him and trying to make his life normal. According to her, she did not know that she had to file a notice of claim. However, ignorance of the law does not constitute a reasonable excuse. This delay of filing of notice of claim causes prejudice to defendant hospital and it would cause injustice if the Court would exercise its discretion in allowing the filling of the late notice of claim.
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