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									ROTELLA v. THE STATE OF NEW YORK and ROSWELL PARK CANCER INSTITUTE
CORPORATION, #2004-031-056, Claim No. 105094, Motion Nos. M-66800, CM-66922

                                           Synopsis

Continuous treatment doctrine - late claim application: Claimants established, among other
things, the merit of their proposed claim. Application for permission to file a late claim is
granted. Defendant established that previously filed claim was improperly served and its
motion to dismiss that claim is granted

                                       Case Information

UID:                                 2004-031-056

Claimant(s):                         JAMES D. ROTELLA and MARIETTA ROTELLA

Claimant short name:                 ROTELLA

Footnote (claimant name) :

Defendant(s):                        THE STATE OF NEW YORK and ROSWELL PARK CANCER
                                     INSTITUTE CORPORATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):                     105094

Motion number(s):                    M-66800

Cross-motion number(s):              CM-66922

Judge:                               RENÉE FORGENSI MINARIK

Claimant’s attorney:                 HOGAN & WILLIG, PLLC
                                     BY: JOHN B. LICATA, ESQ.
Defendant’s attorney:                HON. ELIOT SPITZER
                                     New York State Attorney General
                                     BY: PAUL VOLCY, ESQ.
                                     Assistant Attorney General
Third-party defendant’s attorney:

Signature date:                      May 20, 2004

City:                                Rochester

Comments:

Official citation:

Appellate results:
See also (multicaptioned case)

.

                                             Decision

        The following papers, numbered 1 to 12, were read on motion by Claimants for
permission to serve a late notice of claim and cross-motion by Defendants for summary
judgment:
        1)       Claimants’ Notice of Motion (M-66800), filed May 12, 2003;
        2)       Affirmation of John B. Licata, Esq., dated May 7, 2003, with attached exhibits;
        3)       Defendants’ Notice of Motion (CM-66922), filed June 9, 2003;
        4)       Affirmation of Paul Volcy, Esq., dated June 5, 2003, with attached exhibits;
        5)       Defendants’ Memorandum of Law, dated June 5, 2003;
        6)       Affirmation of John B. Licata, Esq., dated October 15, 2003, with attached
                 exhibit;
        7)       Affidavit of James D. Rotella, sworn to October 14, 2003;
        8)       Claimants’ Memorandum of Law, dated October 15, 2003;
        9)       Affirmation of John B. Licata, Esq., dated January 13, 2004, with attached
                 exhibits;
        10)      Supplemental Affirmation of Paul Volcy, Esq., dated February 10, 2004, with
                 attached exhibits;
        11)      Defendants’ Supplemental Memorandum of Law dated February 10, 2004;
        12)      Physician’s Affirmation on Behalf of Claimants, dated March 3, 2004.         Upon
                 the foregoing papers, and upon oral argument from counsel in this matter,
                 Claimants’ motion for permission to serve a late notice of claim is granted.
                 Defendants’ motion to dismiss the previously filed claim is also granted.
                                         BACKGROUND
        In late June 2001, Mr. Rotella and his wife allegedly served a notice of claim for medical
malpractice on the State Attorney General and Roswell Park Cancer Institute Corporation
(“RPCI”). RPCI, however, never received written notice. On October 12, 2001, Claimants
served a claim, pursuant to Public Authorities Law (“PAL”) § 3567, upon the Office of the
Attorney General. Again, RPCI was not served. Thereafter, on or about November 20, 2001,
Defendants answered the claim and asserted various jurisdictional defenses.
        Recognizing the potential validity of Defendants’ affirmative defenses, Claimants bring
this motion for permission to serve a late notice of claim, pursuant to PAL § 3567. Defendants
have filed a cross-motion to dismiss the previously filed claim. As the issue involved in the
cross-motion is simple and not controverted, I shall deal with Defendants’ cross-motion first.
                                DEFENDANTS’ CROSS-MOTION
        PAL § 3567 requires that the corporation defendant be served with a notice of claim
within the “time limit set by and in compliance with section fifty-e of the general municipal law
[90 days].” Both parties agree that Claimants failed to serve RPCI with a notice of claim within
this 90 day period. For this reason, Defendants’ cross-motion for dismissal of the claim is
granted.
                                     CLAIMANTS’ MOTION
                                         Applicable Statute

       With regard to their motion, Claimants request that I grant them permission to serve a late
notice of claim, asserting that they have met all of the requirements for such relief as set forth in
PAL § 3567.1 Defendants challenge the application of § 3567 of the PAL to this matter, and
assert, regardless of its applicability, that Claimant has not met its requirements. In his
proposed notice of claim, Claimant alleges medical malpractice arising from an April 6, 2001
operation performed on Mr. Rotella by RPCI’s employee, Dr. Chukwumere Eugene Nwogu.
Dr. Nwogu was attempting to remove a schwannoma, or chest mass, found in Mr. Rotella. Mr.
Rotella alleges his brachial plexus and medial cord nerves were severed during the surgery,
rendering him unable to use his left arm and hand.
         Subdivision 1 of § 3554 of the PAL states that all actions to recover money damages filed
against RPCI fall under the Court of Claims’ jurisdiction. However, instead of filing under the
Court of Claims Act (the “CCA”), claimants bringing suit against RPCI must file under PAL
§ 3567 and, by reference, § 50-e of the General Municipal Law (“GML”) (Tyson v Roswell Park
Cancer Institute Corporation d/b/a Roswell Park Cancer Institute, Ct Cl, October 14, 2003
[Motion No. M-67061], Hudson, J., UID #2003-034-002). A critical issue in this matter, as in
Tyson, is whether to analyze Claimant’s application in light of the procedures for serving a late
notice of claim under GML § 50-e, or those for filing a late claim under the CCA § 10(6).
         Defendants have argued, in this regard, that the otherwise pertinent Court of Claims Act
sections can be reconciled with PAL § 3567 and by implication GML § 50-e. If this is so,
Tyson, which determined that the sections were irreconcilable, would be over-broad and demand
reconsideration. If I were to find that the two statutes could be reconciled, the appearance of
merit factor from CCA § 10(6) might be applicable in analyzing Claimant’s motion. In hopes of
succeeding in this argument, Defendants have produced several medical reports questioning
whether Claimant’s application satisfied the appearance of merit requirement of CCA § 10(6).
         It would be prudent, therefore, to re-examine Tyson in light of RPCI’s claim that PAL §
3567(1)(a)’s notice of claim requirement can be harmonized with CCA § 10's time limitations.
It is unnecessary here to reiterate Tyson’s assessment of the statutes’ incompatibility. A cursory
reading easily reveals their contrasting requirements. I will confine my analysis, then, to the
plans for reconciliation offered in Defendants’ February 10, 2004 Supplemental Memorandum.
First, Defendants propose to toll the 90 day statute of limitations for filing a claim under CCA
§ 10(3) to allow RPCI the needed 30 days to investigate the incident under PAL § 3567(1)(b).
However, Defendants fail to specify exactly how they will be alerted to the need for such an
investigation. Clearly, RPCI needs some type of notice to realize an investigation should be
instigated. The mandated notice of claim under PAL § 3567(1)(a) seems the logical way to
provide this advance warning to RPCI. However, one then encounters the difficulty of
reconciling CCA § 10(3)’s two year tolling period with the 1 year, 90 day tolling provision
triggered by the notice of claim and found in PAL § 3567(1)(c). The PAL’s notice of claim, its
statutory tolling provisions, and its time discrepancies with the CCA are impossible to ignore if
one allows for the 30 day investigative period. Reconciliation is impossible - one of the tolling
provisions must be rejected if Defendants’ plan is to succeed.
         Defendants’ second proposal to harmonize the statutes is to equate a timely compliance
with the notice of claim requirements with timely adherence to the notice of intention
requirements. However, this still does not answer the crucial question of which tolling
provision should control the filing of the actual claim. Defendants’ proposals, though
1
   Since Mrs. Rotella’s claim is derived from her husband’s, “Claimant” from here on will
designate Mr. Rotella, yet still encompass his wife’s petition.
intriguing, simply do not reconcile the core dissimilarity in the statutes.
         Since the two laws cannot be reconciled, the question remains which statute’s criteria
should be applied to late claims against RPCI. Tyson (Ct Cl, October 14, 2003 [Motion No.
M-67061], Hudson, J., UID #2003-034-002, supra) was again correct in deciding that PAL
§ 3567(1)(a) should control. Primarily, as Tyson clarifies, such preference is based on the legal
principle that the most recent of two irreconcilable laws should take precedence. However,
even if one accepts Defendants’ proposals as to how the two laws can be reconciled, there is an
additional reason why PAL § 3567(1)(a) should control. Defendants argue that the notice of
intention can be deemed the functional equivalent of the notice of claim (Defendants’ February
10, 2004 Supp. Mem., p. 12). It has long been settled that “where two statutes cannot otherwise
be reconciled, the prior general statute yields to the later specific” statute (Williamsburgh Power
Plant Corp. v City of New York, 255 AD 214, 218). Here, though both laws detail the criteria
for judging applications for late claims, only PAL § 3567(1)(a) specifically designates that a
notice of claim “shall have been made and served.” This contrasts starkly with CCA § 10(6)’s
general, optional allowance for a notice of intention. Even if one accepts the Defendants’
arguments, the more exacting demand of the PAL will still supersede the voluntary choice
offered by the CCA.
         Additionally, Defendants seem to argue that, though the stringent criteria for filing late
claims in the CCA § 10(6) should be followed, “claimants will no doubt benefit from the less
stringent methods of service” in GML § 50-e(3) (Defendants’ February 10, 2004 Supp. Mem., p.
12). Defendants offer no explanation for the selection of strict criteria in one instance and
lenient standards in another. Basing selection on legal doctrine seems the preferable way to
settle such intricate questions. The appearance of merit and its accompanying CCA § 10(6)
factors are, therefore, not to be used in assessing the validity of Claimant’s late notice of claim
application. I note, alternatively, that, even if Defendants’ arguments concerning the potential
to harmonize the conflicting statutes were accepted, I, nonetheless, find that Claimant’s medical
expert has sufficiently demonstrated the appearance of merit.
                                       Continuous Treatment
         Defendants argue that, since they never received the original notice under § 3567(1)(a) of
the PAL, the motion to serve a late notice of claim should be denied. In addition, Defendants
stress that over two years had passed between the original operation and Claimant’s May 7, 2003
motion. This clearly has exceeded the 1 year, 90 day statute of limitations indicated by §
3567(1)(c) of the PAL. Defendants also point to GML § 50-e(5) which states that under no
circumstances should one be given leave to serve a late notice of claim after the time allowed for
filing the claim itself has expired. Therefore, Defendants ask that Claimant’s motion be denied.
         In response to Defendants’ statutory arguments, Claimant counters by asserting that the
continuous treatment doctrine has tolled the statute of limitations for both the notice of claim and
claim. According to § 214-a of the Civil Practice Law and Rules (the “CPLR”), “where there is
continuous treatment for the same illness, injury or condition which gave rise to the” negligent
act in question, a medical malpractice action must only be “commenced within two years and six
months of the act.” The continuous treatment doctrine has been found to toll the 90 day period
in which one must serve the notice of claim, as well as the 1 year, 90 day statute of limitations on
the claim itself (Collum v New York City Health & Hosp. Corp., 664 NYS2d 96). Therefore, if
CPLR § 214-a was found to apply here, Claimant’s petition would not fall outside the statute of
limitations for PAL § 3567(1).
         Generally, for CPLR § 214-a to be applicable, the same physician who caused the
original injury must have overseen the claimant’s treatment during the period in question.
However, even if a patient changes physicians, the doctrine will still apply so long as there is a
“relevant relationship” or “continuing relation” between the two doctors (McDermott v Torre, 56
NY2d 399, 403). Such is the case here, as Dr. Nwogu had referred Mr. Rotella to another RPCI
physician - Dr. Mechtler. Since both doctors are employed by the common agency of RPCI, I
find there has not been a sufficient break in relation to remove Claimant from CPLR § 214-a’s
benefits.
         Defendants do not oppose allowing the doctrine for this reason. Rather, it focuses its
objections to applying CPLR § 214-a on three different grounds. First, Defendants argue that,
since Claimant attempted to file the lawsuit while still under RPCI’s care, he broke the
relationship of trust he held with his doctors. Since this crucial bond of trust was broken,
Defendants claim that the continuous treatment doctrine should not apply. To support this
claim, Defendants argue that one of the purposes of the tolling effect of CPLR § 214-a was to not
interrupt or effect the quality of treatment a patient might receive from a doctor by filing a
lawsuit against him while still under his care (Massie v Crawford, 78 NY2d 516, 519; Allende v
New York City Health & Hosps. Corp., 90 NY2d 333, 338-39). Defendants contend that CPLR
§ 214-a was passed as the legislature realized “[i]t would be absurd to require a wronged patient
to interrupt corrective efforts by serving a summons on the physician or hospital superintendent
or by filing a notice of claim in the case of a city hospital” (Borgia v City of New York, 12 NY2d
151, 156). Here, Defendants allege that Claimant showed no respect for the legislature’s
purpose of preserving the physician-patient relationship, as the notice was served while he was
still under RPCI’s care. Defendants, therefore, conclude that CPLR § 214-a cannot be applied
here, as the situation directly contradicts the doctrine’s purpose. I disagree.
         There is no case law explicitly ruling that the doctrine will cease to apply if a patient files
a lawsuit against a current physician. In the past, this argument for withholding CPLR § 214-a
has been used only when a patient has overtly renounced trust or confidence in their doctor. For
example, in Coyne v Bersani (61 NY2d 939) the doctrine was found inapplicable when the
doctor had to surrender medical records to other physicians from whom the patient had
independently sought medical advice. The court emphasized that since “one of the predicates”
for applying the doctrine was that the patient show “continuing trust” in their doctor, its use was
unnecessary when the patient’s actions did not show such “confidence” (id.).
         However, this was not the case here. Claimant’s trust in RPCI is seen by his regular
trips to its physicians for two years and four months after the date of his injury (Rotella Aff., pp.
3 - 4). His confidence in them was no doubt bolstered by “opinions from nationally prominent
physicians” who supported RPCI’s efforts and encouraged Claimant to continue his treatments
there (Rotella Aff., p. 5). There is no indication that Claimant ever lost his trust in RPCI’s
doctors or that he intended any independent physician to oversee treatment of his injuries. In a
situation such as this, it would be cruel to force a claimant to choose between possible legal
recourse for an injury and the continuing use of one of the most proficient medical institutes in
the country. Though often a good indicator of lack of trust, it is an overstatement to say a
medical malpractice lawsuit always signifies a loss of confidence in a physician. I find that a
claimant’s opportunity to employ CPLR § 214-a is not lost simply because he filed a lawsuit
against a respected medical organization on which he continues to rely.
         Defendants’ second argument against applying § 214-a of the CPLR deals with whether
the “continuous treatment” of Mr. Rotella’s injury was even considered a valid option.
According to Defendants’ February 10, 2004 Supplemental Affirmation, Claimant knew as early
as June 2001 that nothing further could be done to reduce the extent of his injuries (Defendants’
Supp. Affirm., paragraph 7). Defendants also point to Claimant’s knowledge in October, 2002
that a New Orleans medical expert doubted “reconstruction of the nerve would be viable”
(Defendants’ Supp. Affirm., paragraph 8). In medical cases where doctors believe there is no
hope for recovery, any continuous treatment will be ineffectual and merely a routine “check-up.”
Such appointments are not considered sufficient to toll the statute under CPLR § 214-a (Massie v
Crawford, 78 NY2d 516, 520). Any further examinations instituted at the patient’s behest in
such situations will not trigger the doctrine’s tolling provisions (Barrella v Richmond Memorial
Hosp., 453 NYS2d 444, 448). The continuous treatment doctrine’s tolling effect ends then
when the patient is informed of the medical consensus that no amount of further treatment will
bring recovery. Based on the record, Defendants conclude that Mr. Rotella was aware of the
futility of further treatment from RPCI and that CPLR § 214-a ceased to toll PAL § 3567 at the
latest in October, 2002.
         I agree with the Defendants’ assessment of the law but not with its application to the facts
at hand. Borgia v City of New York (12 NY2d 151, 155) states that, if the appropriate doctor is
conducting a course of treatment which is “related” to the condition in the original complaint, the
continuous treatment doctrine will apply. So long as “further treatment is explicitly anticipated
by both physician and patient” and “physician and patient reasonably intend the patient’s
uninterrupted reliance” on the physician’s care, the “continuous . . . treatment . . . [is] satisfied”
(Richardson v Orentreich, 487 NYS2d 731, 732) (emphasis added). One could conclude that,
so long as the patient’s and physician’s actions show hope for recovery, CPLR § 214-a will
apply. Such a situation occurred here.
         Mr. Rotella indicates in his affidavit that, as late as November 21, 2002, RPCI informed
him that medical results indicated potential for improvements in his left arm, hand, and fingers
(Rotella Aff. p. 4). RPCI had employed an electromyogram, an EMG, to read Claimant’s
muscular activities. While such technology might be routinely utilized in similar cases, such a
prognosis is hardly consistent with the belief that any further treatment is ineffectual and futile.
Though Mr. Rotella may have received conflicting advice from the specialist in New Orleans,
this analysis of the EMG results alone is ample evidence that his primary physician at RPCI had
anticipated “further treatment.” Prior EMGs (Rotella Aff. pp. 3 - 4), the suggestion of nerve
transplants or nerve grafts (Defendants’ February 10, 2004 Supp. Affirm., Ex. D), and cautious
hopes for nerve regeneration (Defendants’ February 10, 2004 Supp. Affirm., Ex. B) also showed
hope for improvement. Indeed, it was not until September 22, 2003 that he received final word
from Dr. Mechtler that his “post-operative improvement” had “plateaued” (Rotella Aff. p. 4).
Until that point, the continuous treatment doctrine tolled PAL § 3567 as RPCI’s physicians had
not concretely denied any hope of recovery.
         Defendants, in this final argument against the application of CPLR § 214-a, assert that
this case does not involve the continuous treatment doctrine as severing the brachial plexus nerve
was an act discrete and separate from removing the tumor. Claimant’s continued visits to RPCI,
then, were not connected with the tumor’s resection, the act on which the lawsuit is based. As a
matter of policy, Defendants claim that CPLR § 214-a should then not apply. Yet, according to
Claimant’s medical expert’s affirmation, the tumor was benign and need not have been so hastily
removed (Physician’s Affirmation, pp. 1 - 2). Claimant’s expert further states that, even were
such a schwannoma to be resected, the surgery would require an experienced neurosurgeon as
the nerve and neurofibroma were so closely intertwined (Physician’s Affirmation, p. 2). It
would seem that the conflict of opinion over whether the nerve and tumor resection were two
distinct acts presents a question of fact that can only be resolved at trial. I decline to withhold
the continuous treatment doctrine on this ground alone.
        Upon reviewing and balancing all of the arguments, I find that they weigh in favor of
granting Claimant’s request to serve a PAL § 3567 late notice under CPLR § 214-a’s continuous
treatment doctrine.
        Based upon this conclusion, it is irrelevant to address the Defendants’ allegation that the
hospital was not given 30 days to investigate or compensate claimants under PAL § 3567(1)(b).
Since Collum v New York City Health & Hosp. Corp. (664 NYS2d 96), declared the continuous
treatment doctrine tolled the 90 day statute of limitations for notice, Claimant is free to serve a
late notice of claim and RPCI will still have the allotted time to investigate the complaint.
        Accordingly, for the reasons set forth above, it is
        ORDERED, that Defendants’ cross-motion (CM-66922) to dismiss claim number
105094 is granted. The Clerk of the Court is directed to close the file. And it is further,
        ORDERED, that Claimants’ motion (M-66800) for permission to serve a late notice of
claim, pursuant to Public Authorities Law § 3567(1) and General Municipal Law § 50-e(5) is
granted. Claimants are directed to serve their Notice of Claim within 45 days of the filing of
this Decision and Order, in conformity with the requirements of General Municipal Law § 50-e.
Should timely adjustment or payment be neglected or refused, the claim proper is to be filed and
served in conformity with the requirements of Court of Claims Act §§ 11 and 11-a, with service
also being made on RPCI.


                                                                                     May 20, 2004
                                                                               Rochester, New York

                                                                 HON. RENÉE FORGENSI MINARIK
                                                                       Judge of the Court of Claims

								
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