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NY Court of Appeal turns away brain damaged baby due to failure to sue in time.

Though delivering a child is both amazing and memorable, mistakes and errors can often occur.  The result can be a lifetime of pain and suffering for the child and family.  To address this, a family must keep in mind that the Court has little sympathy for a family or counsel who misses deadlines created.  On June 9th, 2016, the NY Court of Appeals affirmed the dismissal of a case involving a brain damage baby.

Wally G vs. NY City Health and Hospitals Corporation involved an infant Plaintiff who was born prematurely by emergency cesarean section at New York City Health and Hospitals Corp. (HHC) in June 2005. C-Section is a method of delivering the baby when often the baby can not be delivered vaginally or is in fetal distress. Here, Wally G was transferred to the neonatal intensive care unit and discharged in stable condition in August 2005.

Under New York Law, the family, if they believe malpractice occurred must serve a notice of claim against the City within 90 days of when the malpractice occurred. If they serve later than 90 days, they must request Court permission. Here, in January 2007, more than 90 days after the claim arose, without first obtaining leave of court as required by General Municipal Law 50-e (5), plaintiff served a notice of claimagainst HHC claiming that the hospital committed negligence and malpractice arising out of failure to properly treat and manage his mother’s prenatal care, causing the infant to sustain brain damage, cognitive defects, developmental, speech and psychomotor delays fetal and respiratory distress and seizure disorder.

The time to file for permission to serve a late notice of claim is really as soon as possible but no later than 1 year and 90 days after the malpractice occurred. Here Plaintiff filed suit in August 2008, but waited until December 2010, to seek permission to serve late notice of claim. The Appellate Division which is the second level of court in New York after the Supreme Court affirmed dismissal, finding unreasonable an excuse that counsel waited because he needed to receive medical records from HHC. The court held that plaintiff failed to show that the medical records put HHC on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia,” There was a strong dissent written in that case.

This past week the highest court in our state, The New York Court of Appeals affirmed the dismissal. Contrary to plaintiff’s argument, the medical records must do more than “suggest” that an injury occurred as a result of malpractice in order for the medical provider to have actual knowledge of essential facts.

Like the appellate division, the majority of the court found that although the plaintiff’s expert interpreted the records to show that they contained sufficient information about the underlying malpractice that the hospital and HHC would be aware of the facts and could have anticipated a lawsuit was filed and there being no prejudice to HHC, the records could have been interpreted differently and thus not give HHC enough information.

The Plaintiff and a dissenting judge felt that the records did not do enough to suggest that an injury occurred as a result of malpractice.

The lesson learned and something we always do at Leav & Steinberg, LLP is to monitor the particular deadlines and make sure we file suit or request permission to do so as soon as practical. Here the Court’s decision has denied this infant and his family all access to the redress and recover damages.