Rochester Medical Malpractice and Personal Injury Lawyer Blog
Medical malpractice claims against public hospitals in New York must follow strict procedural requirements, including the timely filing of a notice of claim. When a patient dies after allegedly receiving substandard medical care, surviving family members may seek permission to file a late notice, but that request must satisfy well-defined legal criteria. A recent decision from a New York court illustrates the challenges in doing so, particularly where there is no clear evidence that the hospital had prior notice of the alleged malpractice. If your family has suffered a loss due to negligent medical care, a skilled Rochester medical malpractice attorney can help ensure you comply with critical filing deadlines.
Factual Background and Procedural Setting
It is alleged that in February 2023, the decedent presented to a public hospital emergency department with abdominal pain, fever, and diarrhea. The decedent underwent bloodwork, a CT scan, and an ultrasound, which reportedly showed signs of gallstones. She was discharged later that day with a primary diagnosis of gallstones and instructions to follow up with the hospital’s general surgery clinic in March 2023. Additional follow-up appointments were scheduled for lab work in April and a visit with her primary care provider.
It is reported that the decedent never returned for the surgery follow-up. Instead, she sustained a fall at home on March 11 and was admitted to a different hospital, where she remained until her death in April 2023. The petitioner, identified as the proposed administrator of the decedent’s estate, filed a petition seeking to serve a late notice of claim against the original hospital and its governing entity. The petitioner alleged that the hospital failed to diagnose and treat the decedent for acute gangrenous cholecystitis, which led to her decline and eventual death.
It is reported that the petitioner filed the request for a late notice of claim on June 21, 2024, well beyond the 90-day window required under General Municipal Law § 50-e. The hospital opposed the request, arguing that the statute of limitations had expired and that the petition lacked sufficient grounds. The hospital also cross-moved to dismiss the petition based on the petitioner’s lack of legal capacity, as letters of administration had not yet been issued by the Surrogate’s Court.
Time Limitations in Medical Malpractice Claims
The court first addressed whether it had the authority to grant the request for a late notice of claim. Under General Municipal Law § 50-e(5), courts may extend the filing deadline only if the application is made within the one-year-and-90-day limitations period set by CPLR 214-a. The court explained that if the last date of treatment was February 23, 2023, the limitations period would have expired on May 23, 2024, making the June 2024 filing untimely unless the continuous treatment doctrine applied.
The petitioner argued that scheduled appointments for lab work on April 10, 2023, and a primary care visit on April 17, 2023, supported a finding of continuous treatment. The court noted that the doctrine requires evidence that the treatment was for the same condition underlying the malpractice claim and was part of a continuous, anticipated course of care. While appointments were scheduled, the court found insufficient evidence that those visits related to the alleged gallbladder condition, particularly given the decedent’s failure to return for the March 9 surgical consult. The court concluded that there was, at best, a question of fact on the issue but assumed for the sake of argument that the continuous treatment doctrine applied.
Turning to the substantive factors governing whether a late notice of claim may be granted, the court emphasized the importance of actual knowledge. The court found that the hospital’s possession of the decedent’s medical records did not establish actual knowledge of the alleged malpractice. Citing controlling precedent, the court explained that the records must clearly show that the medical staff caused injury through a deviation from accepted standards—not merely suggest it.
The petitioner submitted an expert affirmation stating that the decedent’s symptoms and imaging warranted hospital admission and further testing. However, the court found the expert’s opinion speculative and unsupported by the medical record, particularly because the discharge summary included a recommendation for a follow-up scan and surgical evaluation. The court determined that this did not show the hospital was on notice of any malpractice.
The court also found that the petitioner failed to offer a reasonable excuse for the delay in filing. There was no affidavit, affirmation, or evidence addressing the late filing, and while the lack of prejudice to the hospital could weigh in the petitioner’s favor, it was not sufficient on its own. The court concluded that the combination of no actual knowledge and no reasonable excuse barred relief under § 50-e(5). The request to serve a late notice of claim for the medical malpractice allegations was therefore denied.
As for the hospital’s cross-motion to dismiss the petition based on lack of capacity, the court denied it. While the petitioner had not yet been appointed administrator of the estate, prior decisions make clear that a proposed administrator may file a notice of claim to preserve a wrongful death action, even without formal appointment. Because the notice of claim related to the wrongful death cause of action was timely under the applicable rules, that portion of the case could proceed.
Meet with a Trusted Rochester Medical Malpractice Attorney
Strict procedural rules govern medical malpractice and wrongful death claims against public hospitals, and even a short delay can prevent your case from moving forward. If you believe a loved one’s death was caused by negligent medical care, the experienced Rochester medical malpractice attorneys at DeFrancisco & Falgiatano Personal Injury Lawyers can help you evaluate your options and take timely action. Contact us at 833-200-2000 or reach out online to schedule a consultation.
