In cases where individuals seek to sue the government, its agencies or agents, for alleged wrongdoing, there are specific notice requirements that must adhere to strict timelines in order for the case to proceed.
For example, normal statutes of limitations on negligence resulting in personal injury allow three years from the date of accident in which to file a lawsuit. Claims stemming from allegations of medical malpractice must be filed within 2.5 years. However, if defendant is a government agency (i.e., a school, a public hospital, a police agency, etc.) plaintiffs are required to file a notice of claim within just 90 days of the action resulting in injury.
The courts are very clear on this point, which is why it is so imperative to consult with a lawyer immediately following an injury, even if you aren’t sure whether you have grounds for a claim. An attorney can help you at least preserve your right to file a claim within those statutes of limitations by filing a notice of claim soon after the incident.
Our New York City medical malpractice lawyers know there are very few exceptions to this rule. One of those involves injuries that are not immediately apparent. That is, some negligent action by defendant caused injury, but plaintiff did not and could not have known about it until a later date.
A recent example of this was weighed by the New York Supreme Court, Appellate Division, First Department. In Matter of Kellel B. v. New York City Health & Hosps. Corp., plaintiff filed a notice of claim regarding a medical malpractice lawsuit against a public hospital more than six months after her son was born. The notice of claim was not filed within that strict 90-day window. However, she requested motion for leave to file a late notice of claim, pursuant to General Municipal Law 50-e, because she did not know the child was injured until many months after his birth.
The baby in this case suffered from a condition known as periventricular leukomalacia. It is the death of white matter in the brain due to softening brain tissue, and it’s caused by lack of oxygen and/or blood flow to the brain during birth. Usually, babies with the disorder display no outward signs or symptoms until they begin to miss certain milestones. Examples may include delayed mental development, coordination problems, motor disorders and hearing and vision impairments. It can sometimes lead to cerebral palsy, and it’s usually diagnosed with a head ultrasound.
In this case, the lower court granted that leave for a late notice of claim, and that decision was affirmed by the appellate division. The latter court noted ample case law allowed for such an exception and the defendant did not dispute the mother’s assertion she would have had no way of knowing the child was injured.
It was also noted defendant had actual knowledge of events surrounding the claim within 90 days that would have raised a red flag regarding failure to provide proper labor and delivery care. Specifically, defendant’s own expert witness testified an internal fetal monitor would not be inserted during an active labor situation unless there were “ominous signs of fetal distress.” One was inserted in this case, and there was no indication as to why an employee would do so absent fetal distress.
Given the mother would not have known this fact and indeed would have had no idea alleged malpractice occurred until many months later, the court ruled the notice of claim was filed within a reasonable time after his birth and thus, the lawsuit would be allowed to proceed.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Additional Resources:
Matter of Kellel B. v. New York City Health & Hosps. Corp., Nov. 18, 2014, New York Supreme Court, Appellate Division, First Department
More Blog Entries:
Kraselsky v. Calderwood – Doctor Mistake Means Little Absent Proof of Injury, Nov. 15, 2014, New York City Medical Malpractice Lawyer Blog
