Court of Claims, October 4, 2023

Letitia James, Attorney General (Albert E. Masry of counsel), for defendant.

Held & Hines, LLP (Philip M. Hines of counsel) for claimant.

In this medical malpractice action, claimant Theresa McDonnell, an individual incarcerated in the custody of the Department of Corrections and Community Supervision (DOCCS) at Bedford Hills Correctional Facility, alleges that DOCCS medical personnel failed timely to diagnose and treat a recurrence of her cervical cancer. Defendant moves to dismiss the claim for lack of subject matter jurisdiction on two independent grounds. First, defendant contends that the claim fails to specify the time when the claim arose pursuant to Court of Claims Act § 11 (b). Second, defendant asserts that the claim was not timely served and filed in accordance with Court of Claims Act §§ 10 and 11 (a) in any event.^[FN1] Claimant opposes the motion. For the reasons stated below, the motion is granted.

The claim alleges that claimant entered DOCCS custody on April 30, 2018. She has a "lengthy and complex" medical history, including a 2015 diagnosis of cervical cancer, which{**83 Misc 3d at 312} recurred in 2016 (claim ¶ 17). The claim states that "[i]n or about October 2020" an ultrasound of claimant's abdomen revealed a "large mass from the urinary bladder" (id. ¶ 20). She had been experiencing symptoms related to the mass "for at least six months (since in or about April 2020) before the ultrasound was ordered and performed," including abdominal pain, distension, and [*2]bloating, as well as groin pain and a change in bowel pattern (id.). Imaging studies and biopsies showed that the mass contained malignant cells and, "[b]y January 2021," it was confirmed that claimant's cancer had metastasized, with lymph node involvement (id. ¶ 22). Paragraph 23 of the claim alleges that "[f]rom on or about April 30, 2018 to the present"—that is, the day claimant was first incarcerated up until the day the claim was filed—defendant's negligent failure timely to diagnose and treat her condition caused her to sustain injuries, including recurrence of the cancer and the onset of the underlying symptoms.

Turning to defendant's first ground for dismissal, the pleading requirements of Court of Claims Act § 11 (b) are substantive conditions on the State's waiver of sovereign immunity from liability and, as such, a claimant's failure to comply with them deprives the court of subject matter jurisdiction (see Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]; Lepkowski v State of New York, 1 NY3d 201, 207 [2003]). Among other things, section 11 (b) requires that the claimant plead the "time when . . . [the] claim arose" (Court of Claims Act § 11 [b]). The "guiding principle" underlying this substantive pleading requirement (and the others) is that the information must be sufficiently definite "to enable the State to investigate the claim[ ] promptly and to ascertain its liability under the circumstances" (Lepkowski, 1 NY3d at 207 [internal quotation marks and ellipsis omitted]). And although a claim need not be pleaded with "absolute exactness" (Kimball Brooklands Corp. v State of New York, 180 AD3d 1031, 1032 [2d Dept 2020] [alteration and internal quotation marks omitted]), the State is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski, 1 NY3d at 208).

To plead adequately when a claim arose, where a claim is based upon a single incident of negligence that occur(s) on a "discrete date," a claimant must "allege the 'date of the mishap' " (Sacher v State of New York, 211 AD3d 867, 870, 872 [2d Dept 2022] [ellipsis omitted], quoting Matter of Geneva{**83 Misc 3d at 313}Foundry Litig., 173 AD3d 1812, 1813 [4th Dept 2019]). On the other hand, where a claim is "based upon a series of ongoing acts or omissions occurring on multiple dates over the course of a period of time," courts have recognized that pleading a range of dates may fulfill section 11 (b)'s requirements (Sacher, 211 AD3d at 872, citing Gang v State of New York, 177 AD3d 1300 [4th Dept 2019] [involving allegations of negligent failure to treat infection for several weeks following surgery], Rodriguez v State of New York, 8 AD3d 647 [2d Dept 2004] [involving allegations of negligent failure to treat heart condition over five-month period during the claimant's term of imprisonment], and Epps v State of New York, 199 AD2d 914 [3d Dept 1993] [involving allegations of negligent medical care received over a 21/2-year period of the claimant's term of incarceration]; see Condolff v State of New York, 18 AD3d 797, 798 [2d Dept 2005] [claim satisfied 11 (b) where it alleged various causes of action arising during course of 15-day hospitalization]; cf. Geneva Foundry Litig., 173 AD3d at 1814 [claim did not satisfy 11 (b) where the claimants "failed to supply any dates or ranges of dates regarding their alleged injuries"]).

As an initial matter, given the inconsistent and confusing allegations in the claim, defendant reasonably surmised in support of its motion that the claim alleged that the failure to diagnose and treat claimant's condition arose "in or about April 2020" (claim ¶ 20). Contrary to defendant's argument, however, such a limited date range easily would have fulfilled section 11 (b)'s requirements under the governing precedent outlined above. But as defendant correctly notes in its submissions, the allegations pertaining to April 2020 appear to be factually incorrect because claimant testified at her deposition that they were "inaccurate" and stated that her symptoms actually arose in the "beginning of 2019" (Masry affirmation in support of mot, exhibit A at 101-102; see Matter of DeMairo v State of New York, 172 AD3d 856, 857 [2d Dept 2019]; Curro v State of New York, 79 Misc 3d 888, 889 [Ct Cl 2023]). Claimant does not argue otherwise in opposition to the motion and, indeed, specifically disavows that the claim alleged that the claim arose in April 2020 (see Hines [*3]affirmation in opp to mot ¶ 8). Rather, claimant contends that paragraph 23 of the claim alleges that the claim arose "from on or about April 30, 2018 to the present" (i.e., the date the claim was filed on Feb. 25, 2022), and that this larger range of dates nevertheless satisfies section 11 (b).{**83 Misc 3d at 314}

Whether the time-when requirement of section 11 (b) would be satisfied by such a significantly broader range of dates encompassing nearly a four-year period presents a closer question. As cited above, in claims of medical malpractice brought by incarcerated persons alleging ongoing negligent omissions or the failure to diagnose a specific medical condition in a specific correctional facility or facilities, the Second and Third Departments have found section 11 (b) satisfied in cases where the claimant specified a broad range of dates occurring sometime within the claimant's term of imprisonment (see Epps, 199 AD2d at 914 [21/2 years]; Rodriguez, 8 AD3d at 648 [five months]). Although the Second Department has called into question the reliance of Epps and Rodriguez on the premise that a notice of intention to file a claim need not meet the same stringent requirements imposed upon the claim itself (see Sacher, 211 AD3d at 873-875), that Court nevertheless left intact their holdings as applied in their particular contexts^[FN2]—circumstances similar to those at issue here—and expressly cited them in acknowledging that the specification of a range of dates as the time when the claim arose may satisfy the pleading requirements of section 11 (b) (see Sacher, 211 AD3d at 872).^[FN3] As has been aptly noted in connection with a section 11 (b) "time when" analysis undertaken with respect to a personal injury claim brought by an incarcerated person and which rejected the State's challenge on that ground: "[incarcerated persons] are under the complete care, custody[,] and control of the [d]efendant. Their actions are constantly monitored, and [DOCCS] maintains an extensive paper record of incidents, injuries, [and their] medical care," such that defendant generally is able "to conduct a prompt investigation of the claim and to ascertain its liability, if any" in such cases (Cain v State of {**83 Misc 3d at 315}New York, 11 Misc 3d 1066[A], 2006 NY Slip Op 50404[U], *4 [Ct Cl 2006] [internal quotation marks omitted]).

[1] However, unlike in Epps and Rodriguez, where the claimants alleged that their claims arose and then continued during a range of dates constituting a discrete subset of time (even if a lengthy period) during their term of imprisonment, claimant here alleges that her medical malpractice claim first arose on April 30, 2018, the very day she entered DOCCS custody—approximately two years before the date that the claim alleges that her symptoms even started. As noted above, the claim alleges that her symptoms began in April 2020. And even assuming, as claimant later testified at her deposition, that the April 2020 date was not correct and that the onset of her symptoms occurred in [*4]the beginning of 2019, defendant correctly notes that it strains credulity that corrections personnel failed to diagnose or treat claimant on the first day she arrived in state custody—particularly at a time when she was exhibiting no symptoms—such that the claim could have arisen on that specific date. Further, the use of a range of dates encompassing the entirety of claimant's incarceration up to the date the claim was filed, rather than a more specific or narrowly tailored range of dates encompassing the time she received or was seeking medical evaluation, necessarily would have required defendant to "ferret out or assemble" information spanning nearly four years in order to be able to investigate the claim (Lepkowski, 1 NY3d at 208). Contrary to claimant's contentions, any lack of actual prejudice to defendant in its investigation of the present claim is "immaterial" to the jurisdictional inquiry (DeMairo, 172 AD3d at 857).

Thus, despite the wholly state-controlled access of incarcerated persons to medical care, the necessary strict construction of the jurisdictional requirements of the Court of Claims Act (see Lepkowski, 1 NY3d at 206-207) requires dismissal of the claim here under Court of Claims Act § 11 (b) (see Sacher, 211 AD3d at 870 [stating that "(i)f the claimant fails to specify the dates relevant to the elements of the claim or provides only a broad range of dates, the claim is jurisdictionally defective and properly dismissed"] [internal quotation marks omitted]; Egnasko v State of New York, Ct Cl, July 28, 2021, Martin, J., UID No. 2021-051-022 [holding that medical malpractice claim alleging a failure to refer the claimant for a timely neurosurgical consult was jurisdictionally deficient with respect to the time-when prong of section 11 (b) where the claimant provided{**83 Misc 3d at 316} only "the entire range of his five year incarceration" as the time when the claim arose]; but see Smith v State of New York, 25 Misc 3d 1216[A], 2006 NY Slip Op 52705[U] [Ct Cl 2006] [relying on Epps in denying State's motion to dismiss where claim involved allegations of failure to diagnose the claimant's terminal stomach cancer during entirety of three-year period of incarceration]; Steinberg v State of New York, 5 Misc 3d 1022[A], 2004 NY Slip Op 51507[U] [Ct Cl 2004] [denying State's motion to dismiss insofar as notice of intention and claim involved allegations of a continuing failure to act and diagnose the claimant's sarcoidosis during the two-year period of claimant's incarceration]). Even if claimant had sufficiently alleged the time when the claim arose, however, dismissal of the claim would nevertheless still be required on the independent ground that it is untimely.

Like the pleading requirements of Court of Claims Act § 11 (b), the service and filing deadlines of Court of Claims Act § 10 are jurisdictional in nature (see Lyles v State of New York, 3 NY3d 396, 400 [2004]). Under Court of Claims Act § 10 (3), a claim sounding in negligence must be filed and served within 90 days after the cause of action accrues. Although a medical malpractice claim typically accrues "on the date of the alleged wrongful act or omission" (Nykorchuck v Henriques, 78 NY2d 255, 258 [1991]), the continuous treatment doctrine tolls the period within which a claim must be brought "when continuous treatment is sought 'for the same illness, injury or condition which gave rise to the said act, omission or failure' originally complained of" (Plummer v New York City Health & Hosps. Corp., 98 NY2d 263, 267 [2002] [involving 90-day notice of claim period of General Municipal Law § 50-e], quoting CPLR 214-a). When applicable, the toll provided for by the continuous treatment doctrine may be applied to the limitations periods set forth in Court of Claims Act § 10 (3) (see Champagnie v State of New York, 224 AD2d 476, 476-477 [2d Dept 1996]; see also Ogle v State of New York, 142 AD2d 37, 39 [3d Dept 1988]). "[E]ssential to the application of the doctrine is that there has been a course of treatment established with respect to the condition that gives rise to the lawsuit" (Nykorchuck, 78 NY2d at 258-259). To that end, "neither the mere 'continuing relation between physician and patient' nor 'the continuing nature of a diagnosis' is sufficient" to establish continuous treatment (id. at 259, quoting McDermott v Torre, 56 NY2d 399, 405, 406 [1982]). Further, it is well established that the{**83 Misc 3d at 317} continuous treatment doctrine is not applicable to injuries caused by a defendant's "failure to timely diagnose and establish a course of treatment for [a] condition," even if such failure was negligent (Young v New York City [*5]Health & Hosps. Corp., 91 NY2d 291, 297 [1998]; see Nykorchuck, 78 NY2d at 259; see also Baptiste v Harding-Marin, 88 AD3d 752, 753-754 [2d Dept 2011], lv denied 19 NY3d 808 [2012]; Gasparro v State of New York, 163 AD3d 1227, 1228 [3d Dept 2018]).

The claim here is unclear as to precisely when the omissions and failures that gave rise to claimant's injuries occurred. But even using the date from the claim most favorable to claimant—the alleged date of the recurrence of her cancer in January 2021—the claim is untimely because it was filed and served more than one year after that date, on February 25, 2022.^[FN4]

[2] Moreover, contrary to claimant's contentions, the continuous treatment doctrine is inapplicable to these circumstances. Relying on her deposition testimony, claimant now contends that, up to and even after the claim was filed, she continued to be examined—for conditions which she has failed to specify—by one of the same DOCCS physicians she had previously seen at the facility (a family medicine physician). Claimant further asserts that DOCCS was involved with the scheduling of her subsequent chemotherapy appointments. As defendant correctly observes, however, the gravamen of the claim is that DOCCS medical personnel negligently failed to diagnose and establish a course of treatment for claimant's cancer; nowhere in the claim is any negligence alleged in the post-diagnosis treatment of the condition itself. Indeed, the claim does not even allege that any cancer treatment occurred by any medical provider. As explained above, for litigants to avail themselves of the continuing treatment toll, there must be a course of treatment encompassing the acts or omissions that gave rise to the claim. Controlling precedent forecloses application of the continuous treatment doctrine here because the negligent failure to diagnose claimant does not amount to a course of treatment (see Nykorchuck, 78 NY2d at 259 [rejecting "the self-contradictory proposition that the failure to establish a course{**83 Misc 3d at 318} of treatment is a course of treatment"]).^[FN5] And the continuation of a general patient-physician relationship, in and of itself, is insufficient "to satisfy the requirements of the doctrine" because, "[i]n the absence of continuing efforts by a doctor to treat a particular condition, none of the policy reasons underlying the continuous treatment doctrine justify the patient's delay in bringing suit" (id.; see also Borgia v City of New York, 12 NY2d 151, 157 [1962]; Lane v Feinberg, 293 AD2d 654, 655 [2d Dept 2002]). Because the toll provided by the continuing treatment doctrine is inapplicable here, the claim must also be dismissed for untimeliness.

In sum, this court lacks subject matter jurisdiction over the claim under Court of Claims Act §§ 10, 11 (a), and 11 (b). And "this court is without power to dispense with applicable jurisdictional requirements of law based upon its own concepts of justice" in a particular case (Byrne v State of [*6]New York, 104 AD2d 782, 784 [2d Dept 1984], lv denied 64 NY2d 607 [1985], citing Ponsrok v City of Yonkers, 254 NY 91, 95 [1930], and Lurie v State of New York, 73 AD2d 1006, 1007 [3d Dept 1980], affd 52 NY2d 849 [1981]), however harsh the results may be (see Kolnacki v State of New York, 8 NY3d at 281).

Accordingly, it is hereby ordered that defendant's motion to dismiss (M-99466) is granted, and claim No. 137530 is dismissed in its entirety.