Grottalio and Murphy Receive A Favorable Decision In Potential Malpractice Case

Karen T. Grottalio, with the assistance of associate Laura S. Murphy, Esq., successfully obtained a decision denying plaintiff’s order to show cause why she should not be permitted to file a late notice of claim on behalf of her infant allegedly injured as a neonate at a local hospital. Although the Court required two separate oral arguments before rendering its decision, our lawyers prevailed on the law and plaintiff’s order to show cause was denied.

Petitioner sought to assert two claims of medical malpractice on behalf of her infant son: one for failing to arrest pre-term labor and failure to administer appropriate medications in light of preterm labor; and the second for negligent care with respect to the extent and nature of intestinal surgeries performed on the infant soon after birth. The last date of treatment relative to the intestinal issue at Harlem Hospital was in 1999, though the infant had an unrelated emergency room visit to Harlem Hospital in 2001. In her eight page decision, Justice Karen Smith, Supreme Court Justice, New York County, specifically refers to Ms. Grottalio’s argument that petitioner submitted insufficient proof of a reasonable delay in support of her order to show cause. Justice Smith also dismissed plaintiff’s vague references to failed attempts to obtain the Harlem chart as a reasonable excuse for failing to timely file the Notice of Claim because petitioner supplied no supporting information such as dates or correspondence indicating when these requests were made and how often.

In explaining the decision, the Judge acknowledged, that infancy alone does not compel the granting of leave to file a late notice of claim, citing Davis v. New York City Housing Authority 233 AD2d 110 (1st Dep’t 1996). The Judge accepted Ms. Grottalio’s argument that if there is no causative nexus between the delay and the infancy, then the delay in filing a Notice of Claim on this basis is less excusable.

In this case, the petitioner claimed that her delay is excusable because she did not learn of the potential claim until the infant underwent surgery in September 2006, along with the usual actual notice and lack of prejudice to defendant arguments. The decision further states that plaintiff failed to meet her burden to show that she had a meritorious claim with respect to the tocolytics issue and a reasonable excuse for her delay for both claims.

With respect to the issue regarding actual notice, the Judge followed the Court of Appeals decision in Williams v. Nassau County Medical Center 6 NY3d 531 (2006), holding that the fact that the hospital had records and created them, without more is insufficient to show actual notice of a potential claim.

Finally, as Ms. Grottalio’s argued, Justice Smith held that an eight year delay in investigating this claim is prejudicial to the defendant and plaintiff failed to meet her burden to show how the delay is not prejudicial to defendant.