The First Department, reversing Supreme Court, determined leave to file a late notice of claim should not have been granted in this action against NYC Health & Hospitals Corp (HHP) alleging a failure to timely diagnose breast cancer. The medical records did not alert HHP to injury from malpractice and petitioner failed to show the HHP was not prejudiced by the delay in serving a notice of claim:
Petitioner failed to show that HHC had actual notice of her claim within 90 days of accrual of the claim, or a reasonable time thereafter. HHC’s “mere possession or creation of medical records does not ipso facto establish that it had actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff'” … . Here, HHC records of petitioner’s treatment do not on their face show any negligence, malpractice or injury to plaintiff, and plaintiff did not submit a physician’s affirmation to make such a showing … .
Likewise, petitioner failed to demonstrate the lack of any prejudice to HHC from the delay, as HHC’s “possession of medical records that could not alert it to a claim of malpractice obviously cannot, ipso facto, establish a lack of prejudice” … . Because petitioner offered no other basis for the lack of prejudice to HHC, the burden never shifted to HHC to show prejudice from the delay … . Matter of Atkinson v New York City Health & Hosps. Corp., 2020 NY Slip Op 03609, First Dept 6-25-20