Published on:

New York Court Discusses Late Notice of Medical Malpractice Claims Against Public Corporations

New York has many municipally owned and operated hospitals and medical facilities. While such facilities are not immune to medical malpractice claims, they are subject to different rules. In a recent New York opinion, a court explained the requirements for pursuing medical malpractice claims against a municipality in a case arising out of a negligently performed surgery. If you were hurt due to surgical errors, you should consult a trusted Syracuse surgical malpractice attorney to evaluate your rights.

The Plaintiff’s Claims

It is reported that in April 2016, the plaintiff underwent a surgical procedure to remove her thymus gland at the defendant hospital, which was a public corporation. In August 2016, the plaintiff reported to the defendant’s emergency room with complaints of shortness of breath and other symptoms. She was evaluated as having an elevated right hemidiaphragm and discharged. She visited another emergency room in November 2016 with similar symptoms and received the same diagnosis. Then, in January 2017, she was diagnosed with paralysis of the right hemidiaphragm due to the removal of her right phrenic nerve during her surgery.

It is alleged that in March 2017, the plaintiff served the defendant a petition asking to serve late notice of a claim. The petition alleged the defendant’s failure to obtain the plaintiff’s informed consent and medical malpractice caused the plaintiff’s harm. The court denied the plaintiff’s petition, and she appealed.

Pursuing Medical Malpractice Claims Against a Public Corporation

In evaluating whether to grant a plaintiff leave to serve late notice of a claim, a court must assess all pertinent factors. These include whether the public corporation had actual knowledge of the facts out of which the claim arose within 90 days of when they occurred, whether the delay in filing the claim significantly prejudiced the public corporation in defending the claim, and whether the plaintiff offered a reasonable excuse for failing to provide the public corporation with timely notice of the claim.

Trial courts have the sole discretion as to whether to grant leave to file a late notice of claim. In the subject case, the appellate court noted that the plaintiff did not demonstrate that the defendant had actual knowledge of the key facts surrounding her claim within 90 days of when the claim arose, stating that the mere possession of medical records was insufficient to establish notice. Further, the court found that the plaintiff did not establish that the defendant was not prejudiced by her delay. As such, the appellate court affirmed the trial court ruling.

Meet with a Skillful Syracuse Attorney

When people undergo surgery, they expect the doctors performing their procedures to undertake their tasks in a thorough and competent manner, but unfortunately, some surgeons provide patients with negligent care. If you suffered harm because of surgical malpractice, you could be owed significant damages, and you should meet with a lawyer. At DeFrancisco & Falgiatano, LLP Personal Injury Lawyers, our skillful medical malpractice attorneys can advise you of your potential claims and help you to pursue any compensation you may be owed. You can reach us via our online form or at 315-479-9000 to set up a conference.

Justia Lawyer Rating
Contact Information