In this informative article, New York medical malpractice attorney Robert Sullivan, Esq. discusses the requirements to satisfy in order to assert a claim for medical malpractice against a municipal medical facility in New York City.
Thousands of people in the New York Metropolitan area entrust their medical care and treatment to City-owned and operated medical facilities. Municipal hospitals and clinics in New York City are operated by an agency known as the New York City Health & Hospitals Corporation (“HHC”). While so many people in our community are patients of HHC facilities, few are aware of the rigorous conditions that must be satisfied before a lawsuit for medical malpractice can even be initiated. Furthermore, the time to sue an HHC facility for medical malpractice is significantly shorter than that for a private health care provider. This article is intended to inform patients of the requirements that must be met before an action for medical malpractice may be commenced against an HHC facility.
New York law generally provides that a lawsuit for medical, dental or podiatric malpractice against a private health care provider must be started within 2-1/2 years of the time that the claimed malpractice occurred. However, a claim against an HHC facility must be commenced within a shorter period of time: 1 year and 90 days of the date the malpractice was committed.
In addition, before a medical malpractice action can be filed against an HHC facility, what is known as a “notice of claim” must first be served on the agency. The notice of claim must be served within 90 days of the date the malpractice claim accrued. A notice of claim is a verified document that sets forth certain details concerning the claim including: the identity of the claimant; the date/place the claim occurred; the nature of the claim; the manner in which the claim arose; and the claim amount. The purpose of serving a notice of claim is to afford HHC the opportunity to investigate and possibly settle the claim before a lawsuit is commenced. HHC generally does this by conducting a statutory hearing known as a “50-h hearing” (named after the governing Municipal Law provision) following receipt of the notice of claim. At a 50-h hearing, HHC is permitted to question a claimant under oath about the facts of the claim. If requested by HHC, a claimant’s testimony at a 50-h hearing is required and must be given before the claimant may file a lawsuit against HHC.
Under certain limited circumstances, the court may grant permission to serve a late notice of claim provided the application is made within 1 year and 90 days of the accrual date. Whether a late notice of claim will be allowed is a discretionary matter for the reviewing court. In considering a late notice of claim application, courts generally consider several factors: whether HHC had actual notice of the claim; whether HHC would be unduly prejudice if the application were granted; and whether the claimant has a reasonable excuse for the delay. Significantly, a claimant’s lack of awareness that a medical facility is operated by HHC is not a factor considered on a late notice of claim motion and does not serve as an excuse for any delay.
Because a late notice of claim application is a discretionary matter for the court, the best practice is to avoid the need for one at all costs. While an experienced New York medical malpractice attorney may be able to craft persuasive arguments in favor of such motions, there are no guarantees in this area of practice. Therefore, it is absolutely critical that a patient be aware of whether their treating facility is run by HHC and that they immediately seek the advice of a competent and experienced New York medical malpractice attorney if the need arises.