Many hospitals are not privately owned but are actually public corporations. If a child suffers a birth injury due to medical malpractice at a hospital that is a public corporation, different procedural rules apply for pursuing a claim for damages against the hospital. For example, notice of any claim must be provided within 90 days of when the claim accrues. An appellate division of the Supreme Court of New York recently discussed when a plaintiff will be granted leave to file late notice of a claim, in a case arising from a birth injury. If you live in Syracuse and your child suffered an injury at birth, it is important to speak with a skilled Syracuse birth injury attorney regarding your case as soon as possible.
Reportedly, the plaintiff’s mother presented to the emergency department of the defendant hospital on November 23, 2010. She was 40 weeks and 4 days pregnant at the time, and complained of vaginal leakage, decreased fetal activity, and pain. She was examined and then discharged and sent home. Two days later, the plaintiff was born via an emergency cesarean section at the defendant hospital. The plaintiff was diagnosed with cerebral palsy and brain damage due to perinatal and neonatal asphyxiation.
It is alleged that the plaintiff’s father served the hospital with notice of a claim on August 29, 2013, and the hospital acknowledged receipt of the notice. Then, in March 2014, the plaintiff’s father filed a medical malpractice lawsuit on behalf of the plaintiff, alleging that the malpractice of the hospital’s employees caused the plaintiff’s harm. Specifically, it was alleged that the hospital breached the applicable standard of care in discharging the plaintiff’s mother when she first visited the hospital. Further, it was alleged the hospital breached the standard of care in failing to deliver the plaintiff via a cesarean section in a timely manner.
In September 2016, the plaintiff moved to serve late notice of a claim pursuant to General Municipal Law 50-e(5) which requires notice of a claim within 90 days of when the claim accrues, arguing that the hospital had actual notice of the claim due to medical records which clearly indicated malpractice. Further, the plaintiff argued that the defendant did not suffer any prejudice due to the delay. In return, the hospital filed a motion to dismiss the Complaint for failure to provide timely notice. The court granted the defendant’s motion, after which the plaintiff appealed.
Grounds for Permitting Late Notice of a Claim
The decision of whether to grant leave to provide a hospital that is a public corporation late notice of the claim is within the court’s discretion. In analyzing whether to permit late notice the court will look at several factors, including whether the corporation had actual knowledge of the facts from which the claim arose within 90 days of the accrual and whether the delay in providing notice significantly prejudiced the corporation in defending against the claim. The court will also assess whether the plaintiff has a reasonable excuse for the delay in providing notice.
The court noted that actual knowledge of the claim should be weighed heavily in favor of allowing late notice. While merely having medical records does not provide notice of a claim where the records do not indicate the acts of the medical staff caused any harm, where the malpractice is clear from the records, they are sufficient to constitute actual knowledge. Here, the court found that the medical records showed a departure from the accepted practice upon an independent review and thus, provided actual notice. Further, the court found that the defendant failed to demonstrate any prejudice. Thus, the court reversed the trial court ruling.
Meet with a Trusted Syracuse Birth Injury Attorney About Your Case
A birth injury can result in a lifetime of mental, physical, and financial hardship, and in most cases are entirely avoidable. If your child suffered an injury during birth due to a medical care provider’s negligence you should meet with a trusted Syracuse birth injury attorney regarding your right to pursue damages. The knowledgeable birth injury attorneys of DeFrancisco & Falgiatano are sensitive of how devastating it can be to witness your child suffer due to a birth injury and will work tirelessly to help you recover any compensation you may be owed to help you provide for your child. We can be contacted at 315-479-9000 or through our online form to set up a confidential and free conference.