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Medical malpractice claim dismissed because plaintiffs failed to provide a reasonable excuse for serving the notice of claim late – Velazquez v. City of New York Health and Hospitals Corporation (Jacobi Medical Center), 2010 NY Slip Op 195 (N.Y. App. Div., 2010)


In a medical malpractice claim, the issue before the court is whether the plaintiff had a reasonable excuse for filing a late notice of claim. Under New York law, before a plaintiff can bring a lawsuit against a public or government entity, the plaintiff must first file a notice of claim. The purpose of a notice of claim is to give the government entity advance warning that a lawsuit is pending that involves a claim for damages. It allows the government the opportunity to investigate the incident and the merits of the claim. In the Velazquez case, the defendants are the City of New York Health and Hospitals Corporation, the public entity that operates Jacobi Medical Center. The plaintiff was required to serve the notice within 90 days of the incident that led to the medical malpractice claim.

The infant plaintiff was born at Jacobi Medical Center in March 1998. At birth he weighed one pound, nine ounces, and remained in the neonatal intensive care unit until July 6, 1998. At age 4 he was diagnosed with spastic cerebral palsy and asthma. However, his parents did not file a notice of claim on his behalf until October 11, 2006– 8 years later. The plaintiff claimed that due to the defendant’s medical malpractice and failure to obtain informed consent, he was injured.

Clearly the plaintiff did not serve the notice of claim within 90 days of his birth in 1998. The court must now determine if, despite filing the notice of claim 8 years after the incident, the plaintiff filed the notice timely. The plaintiff filed a motion requesting the court to issue an order deeming the notice of claim served to be timely or, in the alternative, granting leave to serve a late notice of claim. New York law does allow exceptions to the 90-day rule statutory timeframe. In making its decision, the court must look at 3 factors: 1). whether the plaintiff provided a reasonable excuse for the late serving of the notice of claim; 2). whether the municipality had actual notice of the essential facts of the claim within 90-days after the claim arose; and 3) whether the delay would substantially prejudice the municipality in its defense.

First, the court notes that the plaintiff did not provide a reasonable excuse for waiting over 8 years to serve a notice of claim or for seeking leave to file a late notice. Next, the court found that the plaintiffs failed to show that the medical record was enough to give the defendant notice that a medical malpractice claim was likely. Just because complications occurred during the plaintiff’s birth is not enough to alert the defendant that years later the plaintiff would develop the cerebral palsy. Thus, the defendant did not have actual knowledge of the injury or potential for the injury within 90 days of the plaintiff’s birth. As a result, the defendant did not have the opportunity to conduct a prompt investigation of the incident—one of the primary purposes of the 90-day requirement.

Finally, the plaintiff argues that the defendant has not been prejudiced by the fact that the plaintiff did not timely serve its notice of claim. The court distinguishes this case from a case where the plaintiff is unavailable due to death or incapacity so that whether or not the treatment was appropriate or negligent must be determined solely by the medical record. In such a case, both plaintiff and defendant have the access to the same information, the medical records, making the knowledge of the defendant equal to or even superior to the plaintiff’s.

Thus, the court concludes that the plaintiff did not produce evidence showing that the defendant was not prejudiced by the plaintiff’s late service of the notice of claim. As a result, the court ruled that the plaintiff’s application for leave to file a late notice is denied.

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