Infant's Medical Malpractice Birth Defect Case Dismissed for Late Notice of Claim

Case: Plaza v. N.Y. Health and Hospitals Corp.

Court: Supreme Court, Appellate Division, First Department, New York

Date: 7/17/12

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury attorney)

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MEDICAL MALPRACTICE OBSTETRICIAN GRANTED SUMMARY JUDGMENT WHERE CONTINUED EMERGENCY C-SECTION AFTER FETAL HEART RATE LOST; NO EVIDENCE THAT DOCTOR SHOULD HAVE KNOWN THAT FETUS WAS BEYOND RESUSCITATION

MEDICAL MALPRACTICE LATE NOTICE OF CLAIM DENIED 9 YEARS LATER; HOSPITAL HAD NO ACTUAL KNOWLEDGE OF CLAIM

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Facts: This unfortunate decision throws out a medical malpractice case brought by a child due to the technical defect of late service of a notice of claim paper. The child allegedly suffers from seizures and developmental delays due to problems during birth.

Plaintiff sued N.Y.C. Health & Hospitals Corp. but didn't serve it with a notice of claim form within 90 days of the medical malpractice complained of but, rather, more than two years late.

In 2009 the defense moved to dismiss and plaintiff cross-moved to force acceptance of the late-served notice of claim.

Held: Plaintiff failed to give a reasonable excuse for the delay. Also, plaintiff failed to show that HHC had "actual notice" of the claim when it arose -- hospital records weren't enough here because the baby appeared to be born healthy, so the HHC had no clue that there was anything wrong. Case dismissed.

Dissent: One judge disagreed. She believes that the hospital records gave sufficient "actual notice" to HHC so that the late notice of claim should have been accepted.