Ranegas-Nobles v. New York City Health & Hospitals Corp.

Order of the Supreme Court, New York County (Martin B. Stecher, J.), entered May 8, 1991, which denied petitioners’ motion to renew (denominated a motion to renew and reargue) the petition seeking leave to file a late notice of claim pursuant to General Municipal Law § 50-e, reversed, without costs, on the law and the facts and in the exercise of discretion, the motion granted and, upon renewal, the petition granted and the notice deemed filed nunc pro tunc with respect to decedent’s claim for conscious pain and suffering. Appeal from the judgment of the same court, entered March 19, 1991 which, inter alia, denied leave to serve a late notice with respect to the decedent’s claim for conscious pain and suffering and dismissed the petition, dismissed as superceded by the order of May 8,1991, without costs. The medical record is not included in the record on appeal. The facts of this case are taken from the affidavit of merit of petitioners’ medical expert, submitted in connection with petitioners’ motion to renew, which interprets the record received from Harlem Hospital. The affidavit was not submitted with the original application because Harlem Hospital had not yet provided a copy of the medical record to petitioners. On January 18, 1990 at 2:30 p.m., the decedent, Felisa Banegas, was diagnosed as being in need of an emergency laparotomy to correct an incarcerated/strangulated umbilical hernia. She signed a consent to the surgical procedure at 3:00 p.m. However, decedent was not examined by a member of the surgical team until 6:45 p.m. and was not taken to the operating room until 10:30 that night. The operative report notes a perforation of the transverse colon spilling fecal material into the peritoneal cavity. Mrs. Banegas died within two days from septic peritonitis. A notice of claims for both wrongful death and conscious pain and suffering arising out of alleged malpractice was not filed until December 5, 1990. With respect to the filing of a notice of claim against a municipality, a distinction is made between cases in which the [380] party on whose behalf a claim of medical malpractice is advanced is either deceased or incapacitated and those in which he is available to give testimony. Not only is death or incapacity a statutory basis upon which leave to serve a late notice of claim may be granted (General Municipal Law § 50-e [5]; Matter of Ruiz v New York City Health & Hosps. Corp., 165 AD2d 75, 81), but also, in such instances, the hospital record generally constitutes the only evidence of malpractice. Therefore, the knowledge of the claim possessed by the public corporation is at least coextensive with, if not superior to, that of the representative of the injured party and is contemporaneous with the alleged acts of malpractice. Where the propriety of treatment rendered will be determined by an analysis of the medical record, there is little advantage to be gained from the service of a timely notice of claim and, therefore, little prejudice to be sustained by untimely service (Rechenberger v Nassau County Med. Ctr., 112 AD2d 150, 152-153). We note that, because of the death of the decedent, the facts comprising the malpractice alleged to have been committed in this case were entirely within the knowledge of the hospital (Rechenberger v Nassau County Med. Ctr., supra), and the contention that the delay in serving a notice of claim was partially attributable to the difficulty of discovering the alleged malpractice is entirely credible (compare, Perkins v New York City Health & Hosps. Corp., 167 AD2d 150; Bailey v City of New York, 159 AD2d 280). It is also apparent, from the uncontroverted affidavit of petitioners’ medical expert, that the acts alleged to constitute malpractice are discernable from a review of the medical record compiled by Harlem Hospital. In this regard, our decision in Matter of Mandia v County of Westchester (162 AD2d 217) is distinguishable from the matter under review. That case involved a claim of ordinary negligence (see, McKinney v Bellevue Hosp., 183 AD2d 563; Hale v State of New York, 53 AD2d 1025) in which the patient fell from a hospital bed sustaining a fracture of the hip (see, Matter of Aviles v New York City Health & Hosps. Corp., 172 AD2d 237, 238). We emphasized that the report of the incident prepared by hospital staff was insufficient to provide the defendant with actual knowledge of the facts comprising the claim. The death or incapacity of the party asserting a claim, in this case a claim for conscious pain and suffering, is a statutory ground upon which leave to file a late notice of claim may be predicated (General Municipal Law § 50-e [5]; compare, Matter of Ruiz v New York City Health & Hosps. Corp., supra; [381] Matter of Aviles v New York City Health & Hosps. Corp., supra), if there is no substantial prejudice to the public corporation (Rechenberger v Nassau County Med. Ctr., supra, at 153). Where, as here, the facts are discernable entirely from records within the exclusive possession and control of the hospital, its knowledge of the essential facts constituting the claimed malpractice is equal or superior to that of the injured party’s representative and was acquired contemporaneously with the injury alleged to have been sustained (supra; but see, Thompson v New York City Health & Hosps. Corp., 172 AD2d 433). Upon the record in this case, we perceive no prejudice to respondents (Matter of Quiroz v City of New York, 154 AD2d 315) and leave should be granted to deem the notice of claim filed nunc pro tunc with respect to decedent’s claim for conscious pain and suffering. Concur—Murphy, P. J., Rosenberger and Rubin, JJ.