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ALTHOUGH DEFENDANT NYC HEALTH AND HOSPITALS CORPORATION (HHC) DID NOT HAVE TIMELY KNOWLEDGE OF THE ACTUAL FACTS CONSTITUTING PETITIONER’S MEDICAL MALPRACTICE CLAIM, THE FAILURE TO PROVIDE THE MEDICAL RECORDS UPON REQUEST JUSTIFIED GRANTING THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (FIRST DEPT).

The First Department, over an extensive dissent, determined Supreme Court properly allowed petitioner (Townsend) to file a late notice of claim against the NYC Health and Hospitals Corporation (HHC). Petitioner had been treated for a lacerated thumb. Petitioner did not learn a tendon had been torn until after the 90-day period for filing a notice of claim had passed. He hired an attorney shortly thereafter. The attorney requested petitioner’s medical records from HHC but had not received them by the time the statute of limitations was about to run out. At that point the attorney petitioned for leave to file a late notice of claim. Although HHC did not have timely actual knowledge of the nature of the malpractice claim, because the torn tendon was not mentioned in the HHC medical records, the petitioner’s excuse for not filing the notice of claim (HHC’s failure to provide the medical records) was deemed sufficient:

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The actual knowledge requirement “contemplates actual knowledge of the essential facts constituting the claim,’ not knowledge of a specific legal theory” … . Facts found in medical records that merely “suggest” the possibility of malpractice are insufficient, as a plaintiff must demonstrate a hospital’s actual knowledge of negligent acts or omissions which result in injury to a plaintiff … . Supreme Court correctly found that HHC did not acquire actual knowledge of Townson’s malpractice claim through the medical records.

The dissent concedes that Townson … did not learn of [his] torn tendon until March 19, 2015, after the 90-day period had expired. The dissent argues that Townson’s excuse may have been reasonable had he requested leave to file shortly after March 19, 2015, when he learned of the torn tendon. In the dissent’s view the delay in serving the notice of claim is not excusable.

We disagree. Townson’s claim of malpractice is premised upon a theory that the emergency room failed to evaluate whether internal, connective soft tissue damage resulted from the deep laceration. Townson’s counsel, at the time he was retained, which was immediately after Townson had learned of the torn tendon, promptly sent a request to HHC for the medical records to discern the viability of Townson’s malpractice claim, but HHC failed to respond on multiple occasions … . Matter of Townson v New York City Health & Hosps. Corp., 2018 NY Slip Op 00607, First Dept 2-1-18

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MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, ALTHOUGH DEFENDANT NYC HEALTH AND HOSPITALS CORPORATION (HHC) DID NOT HAVE TIMELY KNOWLEDGE OF THE ACTUAL FACTS CONSTITUTING PETITIONER’S MEDICAL MALPRACTICE CLAIM, THE FAILURE TO PROVIDE THE MEDICAL RECORDS UPON REQUEST JUSTIFIED GRANTING THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (FIRST DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, ALTHOUGH DEFENDANT NYC HEALTH AND HOSPITALS CORPORATION (HHC) DID NOT HAVE TIMELY KNOWLEDGE OF THE ACTUAL FACTS CONSTITUTING PETITIONER’S MEDICAL MALPRACTICE CLAIM, THE FAILURE TO PROVIDE THE MEDICAL RECORDS UPON REQUEST JUSTIFIED GRANTING THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (FIRST DEPT))/MEDICAL MALPRACTICE (MUNICIPAL LAW, NOTICE OF CLAIM, ALTHOUGH DEFENDANT NYC HEALTH AND HOSPITALS CORPORATION (HHC) DID NOT HAVE TIMELY KNOWLEDGE OF THE ACTUAL FACTS CONSTITUTING PETITIONER’S MEDICAL MALPRACTICE CLAIM, THE FAILURE TO PROVIDE THE MEDICAL RECORDS UPON REQUEST JUSTIFIED GRANTING THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (FIRST DEPT))

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EVIDENCE OF DEBRIS ON FLOOR WAS SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER DEFENDANTS WERE LIABLE UNDER LABOR LAW 241(6) AND 200, PLAINTIFF STEPPED INTO A HOLE BUT DID NOT KNOW WHETHER THE HOLE WAS OBSCURED BY THE DEBRIS (FIRST DEPT).
PRESENCE OF LOOSE GRANULES WHICH CAUSED PLAINTIFF TO SLIP TO HIS KNEES VIOLATED INDUSTRIAL CODE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).
STOP AND ARREST OF PLAINTIFF PURSUANT TO NYC’S STOP AND FRISK POLICY STATED VALID CAUSES OF ACTION PURSUANT TO 42 USC 1983 AGAINST THE POLICE OFFICERS AND THE CITY (FIRST DEPT).
THE JURY WAS INSTRUCTED ON THE CRITERIA FOR CONSCIOUS PAIN AND SUFFERING IN THIS NURSING-HOME MALPRACTICE CASE, BUT THE JUDGE DID NOT FIRST DETERMINE PLAINTIFF HAD SOME LEVEL OF COGNITIVE AWARENESS; THE CONSCIOUS PAIN AND SUFFERING CRITERIA ARE THE SAME FOR MALPRACTICE AND FOR VIOLATION OF PUBLIC HEALTH LAW 2801-D; NEW DAMAGES TRIAL ORDERED (FIRST DEPT).
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REASONABLE EXPECTATION DOCTRINE PRECLUDED SUIT AGAINST RESTAURANT FOR CHOKING ON A ONE INCH FISH BONE.
DEFENDANT’S REQUEST TO REPRESENT HIMSELF, MADE DURING JURY SELECTION, WAS TIMELY, SUMMARY REJECTION OF THE REQUEST WITHOUT ANY INQUIRY REQUIRED REVERSAL.

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