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Davis v. State9/20/2004
This opinion is uncorrected and will not be published in the printed Official Reports.
Claimant seeks permission to file a late claim pursuant to Court of Claims Act §10(6). The underlying causes of action sound in medical malpractice, negligent supervision and deliberate indifference, and involve purported malpractice while Claimant was an inmate at the Albion Correctional Facility (Albion). In opposing the late claim application, Defendant makes a cross-motion to dismiss the claim.
As background for discussion of the legal issues, it is alleged, without dispute, that Claimant was born with hydrocephaly, for which a shunt is surgically implanted and which occasionally needs "revision." It is alleged that Claimant exhibited signs and symptoms consistent with a shunt malfunction beginning in December 1999 and continuing to April 2001; a doctor recommended on January 18, 2001 that Claimant be checked for such shunt malfunction, but it is further alleged that Defendant did not follow up on that recommendation until April 20, 2001. It is thus contended that, as a result of the delay and the negligence of the Defendant in providing medical care and in supervising the provision of medical care, Claimant suffered a permanent loss of vision. It is also asserted that Defendant exhibited deliberate indifference to Claimant's serious medical needs.
The procedural history of this matter starts with Claimant's pro se notice of intention to file a claim which was dated August 17, 2001, and was served by certified mail, return receipt requested, upon the Defendant on August 29, 2001 (see Exhibit A to Defendant's cross-motion). Thereafter, Claimant, now represented by counsel, filed the instant claim on March 24, 2003. In its answer, the Defendant alleges several affirmative defenses relating to timeliness.
To preserve her rights, without conceding the untimeliness alleged by the Defendant, Claimant has made a motion for permission to file a late claim. In response thereto, in addition to opposing that relief, the Defendant has made a cross-motion to dismiss the claim. Since a determination of the cross-motion to dismiss the claim could obviate the necessity of deciding the late claim application, I will address the cross-motion first.
Defendant specifies the grounds for dismissal as Point I: the claim is untimely filed ( 8 to 13 of Defendant's affirmation in support); Point II: the proposed claim fails to state a cause of action for medical malpractice against the State of New York ( 14 to 28 of Defendant's affirmation in support), and Point III: Claimant fails to state a cause of action for constitutional violations ( 29 to 31 of Defendant's affirmation in support).
The cross-motion reviews the pro se notice of intention which alleges that the claim arose on August 17, 2001 at the Medical Department at Albion and alleges " nadequate medical treatment from December of 1999 to present" and includes loss of eyesight as one of the injuries.
The claim alleges the Defendant's failure to provide adequate medical care from the time of Claimant's transfer from Bedford Hills Correctional Facility to Albion on or about November 24, 1999, and more specifically from December 1999, when Claimant first complained of "symptoms consistent with the buildup of cerebrospinal fluid," until such time as it was too late to prevent Claimant from suffering permanent loss of vision. The claim addresses the Defendant's failure to take reasonable steps to prevent complications arising from Claimant's medical condition, negligent delivery of medical care, departure from the accepted standard of medical care, negligent supervision of the provision of medical ca
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