The following papers numbered 1 to 15 were read on this application by petitioner for an order pursuant to General Municipal Law 50-e(5),granting petitioner leave to serve a late notice of claim against the respondent, granting petitioner leave to serve a summons and complaint against the respondent, and compelling the respondent to provide complete medical records pertaining to the pediatric clinic and cardiac clinic records of Sasha Markland:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits..............1 - 6

Affirmation in Opposition.........................7 - 12

Reply Affirmation................................13 - 15

On October 5, 2012, Melvarie Cole, the mother and natural guardian of Sasha Markland, served a Notice of Claim on the New York City Health and Hospitals Corporation. Petitioner now moves for an order deeming said Notice of Claim to have been served upon the respondent in a timely fashion or for an order granting the petitioner leave to serve a late notice of claim. Petitioner also seeks leave to serve a summons and complaint. [*2]

The proceeding arises out of allegations of medical malpractice and negligence during the neonatal and pediatric care of infant Sasha Markland at the Queens Hospital Center and at South Queens Community Health Center. The petitioner contends that the claim arose on the date of Sasha's birth on August 16, 2009. The infant stayed in the newborn and pediatric care unit until her discharge on August 18, 2009. The infant was subsequently treated at South Queens Community Center through October 16, 2009. On October 16, 2009, the infant was admitted to the emergency room at Queens Hospital Center and then transferred to Long Island Jewish Schneider Children's Hospital. The infant is presently three years of age and has been diagnosed with a cardiac condition which required surgery. She has also suffered strokes and seizure disorders allegedly resulting in brain damage and significant developmental delays.

Petitioner asserts that the infant continues to treat for her injuries and has been under the continuous care and treatment of South Queens Community Health Center which is claimed to be a clinic affiliated with New York City Health and Hospitals Corporation. Counsel alleges that the respondents were negligent in the care and treatment of the infant's mother during her admission, her labor and delivery, and in the course of cardiac surgical neonatal emergency room and pediatric care. Counsel asserts that the physicians and hospital committed acts of malpractice in negligently tendering prepartum, partum, and postpartum care to the infant and mother, in failing to monitor and detect cardiac conditions, failing to provide appropriate medications, and in failing to properly monitor the infant. As a result the petitioner claims that the infant sustained multiple injuries including middle cerebral artery infarction with hemorrhagic transformation, stroke, right basal ganglia left frontal and parietal infarct, brain damage and injury.

Petitioner asserts that although 90 days have elapsed since the initially alleged negligent care has taken place, the infant remains under regular pediatric care from NYCHHC. Counsel claims that the statute of limitations has not run and that the infancy of the child is a strong mitigating factor in permitting late notice of claim to be served. Counsel claims that there will be no prejudice to the hospital as it is in possession of medical records with reference to the labor and delivery and birth of the child as well as subsequent neonatal and pediatric care.

In support of the application, the infant's mother, Malvarie Cole states in an affidavit that she gave birth to Sasha Markland at Queens Hospital Center on August 16, 2009. Her daughter was discharged as a newborn from QHC on August 18,2009. She was then brought for subsequent pediatric care to QHC between August 16, 2009 and October 16,2009. Her daughter was admitted to the emergency room at QHC on October 16, 2009 and transferred to North-Shore Long Island Jewish Hospital on that day. The infant daughter, who is now three years old has been diagnosed with a cardiac condition, sustained multiple strokes and seizure disorder and sustained brain injury and impairments. She states that she has been advised by her attorney Steven Goldfarb that there is a potential meritorious claim for medical malpractice which she would like to pursue.

The NYCHH submits an affirmation in opposition contending that the petitioner has not shown that the respondent had actual knowledge of the facts underlying her claims within 90 [*3]days of the accrual of the claims, they have not shown that the respondent will suffer prejudice as a result of the late filing of the claim, they have not offered a reasonable excuse for not filing the notice of claim within 90 days, and they have not included an expert affidavit demonstrating that their claims have merit.

Respondent claims that mere possession of the medical records does not in itself constitute notice of claim. Further, respondent argues that a review of the records indicates that the respondent did not become aware of any problem with the infant until November 10, 2010, fifteen months after the infant was born as the intervening treatment took place at another facility. The respondent also alleges that the petitioner failed to provide any explanation as to why she did not seek to initiate a claim for almost three years. Respondent contends that any claims that may be made by the mother are time-barred, and further they allege that the petitioner has not included any of the child's medical records from QHC or an expert affidavit to support their contentions of malpractice or to attest to the merits of their action.

Respondent's version of the facts based upon the medical records in their possession is as follows. The records, a copy of which has been submitted with the affirmation in opposition indicates that the infant petitioner was born in QHC on August 16, 2009. Immediately after the birth a heart murmur was detected. After an assessment which included an EKG, the heart murmur was determined to be asymptomatic. The infant was discharged after two days in good condition. The mother brought the infant to the QHC pediatric clinic on August 25, 2009 and September 16, 2009 for routine visits. On October 16, 2009 the infant was brought to the pediatrician with complaints of a cough. Because the doctor detected an abnormal respiratory sound and increased heart rate he sent the infant to the pediatric emergency room at QHC to rule out pneumonia or congestive heart failure. The emergency room diagnosed the infant with pneumonia or bronchiolitis and transferred the infant to the Long Island Jewish Medical Center (LIJMC) for further evaluation and treatment.

Respondent contends that the infant did not return to QHC until over one year later when she was seen by a hospital pediatrician on November 5, 2010. It is claimed that it was at that point when respondent became aware for the first time that the infant had undergone surgery over a year before at LIJMC at the age of two months during which surgery she suffered a stroke. Counsel claims that as of November 2010 the infant returned to QHC for routine pediatric care and rehab therapy. Counsel claims that QHC did not render ay neurological care related to the stroke that occurred at LIJMC.

Respondents argue that the application to serve a late notice of claim must be denied as the petitioner's application failed to show that the Hospital had knowledge within 90 days of its care that its care may have caused an injury to the infant and mother, failed to show that the late filing will not prejudice the defense and failed to show a reasonable excuse for the delay in serving the notice of claim. Further, the respondent alleges that the petitioner failed to provide a physician's affidavit to attest to the nexus between the Hospital's care and the infant's alleged injuries. Counsel argues that the mere fact of the Hospital having medical records does not [*4]establish actual knowledge of a potential injury especially where the records did not document any potential claim of malpractice (citing Williams v Nassau County Medical Center, 6 NY3d 531 [2006]).

Respondent also asserts that the courts have held that actual knowledge based upon hospital records may not be found absent a clear showing of a nexus between the alleged malpractice and the injuries and that said actual knowledge must be acquired within the 90 day time frame (citing Berety v New York City Health and Hospitals Corporation, 56 AD3d 591 [2d Dept. 2008]). Counsel contends that in the instant case the petitioner has not submitted an expert affidavit and has not shown that the Hospital had acquired actual knowledge of the facts constituting the infant's alleged injury or malpractice on the part of the hospital. Respondent states that the records indicate that the respondent had no knowledge within 90 days of the infants birth that anything was wrong that might indicate a problem with the birth process or neonatal care. Although the infant was brought back to the hospital with a cough in October 2009, two months after the birth, she was thought to have pneumonia and not a cardiac anomaly as alleged in the Notice of Claim. Counsel claims that there is nothing in the QHC records up to and including the October 16, 2009 encounter which would have put respondent on notice that there was a problem with the infant or her care.

Lastly, respondent states that the petitioner has not shown lack of prejudice and has not submitted a reasonable excuse for the delay and has not submitted a supporting doctor's affidavit (citing Nieves v NYHHC, 34 AD3d 336 [1st Dept. 2006]). Although respondent acknowledges that the mother states in her affidavit that the delay was occassioned because she has been consumed with the care and special needs of my daughter which have included extended hospital admissions to date, respondent contends that this is merely a superficial statement which lacks detail.

"In determining whether to grant leave to serve a late notice of claim, the court must consider several factors including whether (1) an infant is involved, (2) there is a reasonable excuse for the delay, (3) the public corporation acquired actual knowledge of the facts underlying the claim within 90 days or a reasonable time thereafter, and (4) the late service would result in substantial prejudice to the public corporation defending on the merits (see General Municipal Law § 50-e [5]; Arias v New York City Health & Hosps. Corp., 50 AD3d 830 [2d Dept. 2008]). Actual knowledge of the essential facts is an important factor in determining whether to grant an extension and "should be accorded great weight" (Matter of Brownstein v Incorporated Vil. of Hempstead, 52 AD3d 507[2d Dept. 2008]; see also Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138[2d Dept. 2008]" (Berety v. New York City Health & Hosps. Corp., 56 AD3d 591 [2d Dept. 2008]).

In analyzing the factors herein, this court finds that the case involves an infant born three years prior to the filing of the notice of claim, that claimant's infancy automatically tolls the applicable one-year and 90-day statute of limitations for commencing an action against a municipality (see Arias v. New York City Health & Hosps. Corp. 50 AD3d 830 [2d Dept. [*5]2008]) and that the mother has provided a reasonable excuse for the late filing. This court finds that the hospital records also contain essential facts which were recorded within 90 days of the infant's birth and which could bear the basis of the malpractice claim. In the proposed notice of claim the petitioner alleges that there was a failure to institute treatment or care for cardiac murmurs, failed to perform further cardiac testing in view of the signs and symptoms of the cardiac condition and/or heart murmur and that there was a delay in diagnosis of an anomalus left coronary artery which it is claimed led to a further complications including a stroke. Here, the hospital records submitted by the respondent indicate in several entries that the hospital had actual knowledge that the infant had a heart murmur at the time of birth and discharged the infant on August 18, 2009 with a diagnosis of "undiagnosed cardiac murmurs" without performing further testing. The initial newborn profile states that the problems identified include a heart murmur. The progress notes indicate that the heart murmur was asymptomatic. The discharge transfer summary also indicate that the mother was referred for a cardiology appointment on September 1, 2009. The petitioner was seen at QHC on October 16, 2009 and was assessed with "..acute respiratory/possible cardio compromise-r/o congestive heart failure related vs bronchiolitis/pneumonia or both as discussed." When next seen at QHC the infant had been diagnosed with "post anomalous coronary artery and surgery - hx of post surgical infarc - hx of seizure and left side weakness." Therefore, with respect to the issue of actual knowledge, the records contain entries which indicate that the infant suffered from a cardiac condition at birth, which because it was not further diagnosed or treated at QHC, may have potentially led to her cardiac difficulties months later which underlie the plaintiff's claim (see Matter of Corvera v Nassau County Health Care Corp., 38 AD3d 775 [2d Dept. 2007][The respondent possessed the infant petitioner's medical records, which documented her injuries at birth, the care given to her, the procedures performed, and the time of the alleged malpractice]).

Lastly, since the respondent acquired timely knowledge of the essential facts constituting the petitioner's claim this court does not find that the respondent would be substantially prejudiced in maintaining its defense on the merits after the three year delay (see Matter of Joy v County of Suffolk, 89 AD3d 1025 [2d 2011]; Brownstein v Incorporated Vil. of Hempstead, 52 AD3d 507 [2d Dept. 2008][by demonstrating that the respondent acquired timely knowledge of the essential facts of the claim, the petitioner met their initial burden of establishing a lack of substantial prejudice]).

Accordingly, for all the above stated reasons, it is hereby

ORDERED, that the application for an Order pursuant to Gen. Mun. Law 950-e(5) granting petitioner leave to deem a late notice of claim, in the form proposed, filed in October 2012 timely served, nunc pro tunc, upon The New York City Health and Hospitals Corporation is granted and shall be deemed timely served upon service of a copy of this order, with notice of entry on the respondent, and it is further,

ORDERED, that the plaintiff is granted leave to file a summons and complaint in the form annexed to the motion and it s further, [*6]

ORDERED, that the respondent shall supply plaintiff with a copy of the petitioners' medical records upon payment of reasonable fees.

This constitutes the judgment of the court.

Dated: May 20, 2013

Long Island City, NY

_______________________

ROBERT J. MCDONALD

J.S.C.