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Plaintiff’s Request for Leave to Follow Late Claim is Denied by New York Appellate Court


A mother and her son claim for medical malpractice against a hospital. The action arises when the mother delivered her son and alleges that the infant sustained meconium aspiration syndrome and hypertonia as a result of the hospital’s mismanagement of her labor and delivery. Even if the infant was transferred to another hospital for almost two weeks, he was then transferred back to the opponents’ hospital where he remained. Subsequently, the newborn was treated at the opponents’ hospital. It is further alleged that the newborn suffers from brain injury and severe developmental delays.

At the beginning, the court lacks of authority to grant leave to file a late notice of claim as to the mother’s individual claims because her application is made more than one year and ninety days from the accrual of the action.

In determining whether to allow a late filing, a New York Injury Lawyer said the court must consider various factors which includes whether the petitioner has demonstrated a reasonable excuse for failing to serve a timely notice of claim, whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or reasonable time thereafter, and whether the delay would considerably prejudice the public corporation in defending on the merits.

Although the infant had a complicated condition in the hospital following the delivery, the court and its progeny stand for the proposition that a difficult hospital condition as evidenced by entries in the hospital’s records at the time of the mother’s birth does not provide notice of the facts underlying the medical malpractice claim.

Further, entries in the medical records reveal that the infant was developing normally at the time of discharge and there is no indication of a long term injury. In the mother’s supporting affidavit, she admits to being aware of the conclusion by noting that at the age of three months her son had met all developmental milestones. A neurology visit note supports the conclusion. The mother also stated that about 17 months after delivery, her son had once again met all milestones. The mother stated that she did not learn of her son’s alleged delays until some point thereafter and that it was not until that more findings led her to believe that her son’s damages were in fact related to his birthing process. It is evident that the complainant could not have been aware of any injury attributable to the delivery within 90 days of the date of accrual, or a reasonable time thereafter, as there was no indication that the infant suffered any alleged delays until later. Consequently, the subject medical records alone do not show that the mother by its acts or omissions, inflicted injuries on her infant and that the mother should have been aware of same within the applicable 90 days, or a reasonable time thereafter.

Although the case is not about waiting until the eve of trial to file a notice of claim or seek leave to file same, the mother’s excuse for not being aware that her son’s problems could have been caused by malpractice is that she only had a high school education at the time of her son’s birth. Ignorance of the law requiring that a notice of claim be filed is not an acceptable excuse. Furthermore, there is no support for the assertion that the delay was the product of infancy or of the need to provide the infant with extraordinary care. A Nassau County Personal Injury Lawyer said that as a result, the mother fails to offer a reasonable excuse for the delay in filing the notice of claim.

Finally, the mother’s expert states in a conclusory manner that the hospital committed medical negligence and malpractice by failing to timely deliver the infant, resulting in damages. A Manhattan Personal Injury Lawyer said that the mother’s expert fails to offer the necessary nexus between the act of the opponent and any harm to the mother that would put the hospital on notice that a claim would be filed with regard to the delivery at issue.

As the facts documented in the chart would not place the opponent on notice of a claim, the application is denied. Merely asserting that the infant suffered a difficult neonatal condition, the opponent’s notice of malpractice claim is rejected. To prevail on the application, the mother must establish that the hospital had departed from the standard of care in treating the infant and that those departures caused the infant’s injuries. The mother had not established such elements and therefore, the application is denied.

Everybody wants to be treated equally. If you or a family member suffer from injury and have not made any action due to ignorance of your rights, a skilled attorney will always be ready to defend you. Contact Stephen Bilkis and Associates for guidance and a free consultation.

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