CLAIMANTS’ MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED PRIMARILY BECAUSE THE MEDICAL RECORDS PROVIDED THE STATE WITH TIMELY KNOWLEDGE OF THE NATURE OF THE CLAIM (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined claimants’ motion for leave to file a late notice of claim pursuant to Court of Claims Act 10(6) in this medical malpractice action should have been granted, primarily because the state had timely knowledge of the nature of the claim and was not prejudiced by the 14 week delay:

… [T]he claimants demonstrated that the State had timely notice of the essential facts constituting the claim, inter alia, to recover damages for personal injuries arising from the alleged malpractice, by virtue of the medical records from Southampton Hospital as well as the medical records from Stony Brook University Hospital (hereinafter University Hospital), also owned by the State, to which the claimants’ infant son was transferred and where he later died … . The medical records evidence the medical care received by the claimant and the infant. The records show that during the claimant’s labor, no sonogram of the fetus was taken to determine the fetus’ head size. The records also show that, after approximately nine hours of unsuccessful labor at Southampton Hospital, which included the administration of pitocin, a birth-facilitating drug, and an epidural, the claimant was counseled about using forceps to deliver the fetus. After the claimant agreed to try a forceps-assisted delivery and declined to consent to an episiotomy, the infant was delivered via forceps-assistance and was diagnosed immediately with a hemorrhage below his scalp as a result of “birth trauma.” Thereafter, the infant was transferred to University Hospital, where he died a week later. The autopsy report in University Hospital’s medical records indicates that the infant suffered, inter alia, an injury during the forceps-assisted delivery which separated the infant’s brain stem from his upper cervical spinal cord region, and the infant’s overly large head was noted to be a factor in this injury. Although the treating physician noted in his report—which was created after the delivery—that the claimant did not want a cesarean section, the claimant’s medical record contains a form signed by the claimant on admission consenting to a cesarean section. There is no documentation in the record to show that the claimant was advised that a cesarean section should be performed. In addition, the claimant’s medical records, postdelivery, demonstrate that she experienced perineal lacerations and vaginal tears, which were deep and penetrated the perirectal tissue, as a result of the delivery. Stirnweiss v State of New York, 2020 NY Slip Op 04986, Second Dept 9-16-20