Alvarez v. New York City Health & Hospitals Corp. , 955 N.Y.2d 330 ( 2012 )

In this action for medical malpractice, the infant plaintiff who was born at defendant hospital in October 2004 and was found to be suffering from abnormally low glucose levels shortly after her birth, alleges, inter alia, that defendant committed malpractice by failing to perform an emergency cesarean section and in its diagnosis and treatment of plaintiffs hypoglycemia, resulting in neurological injuries. Plaintiff served defendant with a notice of claim on June 5, 2006 but did not move to deem the notice timely until February 8, 2009.

In support of her motion, plaintiff submitted a pediatrician’s affirmation which established that defendant had actual knowledge of the facts underlying her theory of a departure from the accepted standard of pediatric care with regard to the diagnosis and treatment of plaintiffs hypoglycemia and the existence of a causally related injury, which opinions are not refuted by any pediatric defense expert (see Perez v New York City Health & Hosps. Corp., 81 AD3d 448 [1st Dept 2011]).

Plaintiff also established the lack of substantial prejudice resulting from the delay as the hospital records, which evidence an investigation in the cause of the infant’s condition, provide “an extensive ‘paper trail’ and preserve all of the essential facts relating to this claim” (Matter of Quiroz v City of New York, 154 AD2d 315, 316 [1st Dept 1989]; see also Young v New York City Health & Hosps. Corp., 90 AD3d 517, 518 [1st Dept 2011]). The claim that hospital personnel have left defendant’s employ does not evidence substantial prejudice “absent a showing that the doctors are actually unavailable” (Greene v New York City Health & Hosps. Corp., 35 AD3d 206, 207 [2006]). In addition, the absence of a reasonable excuse is not determinative (see Perez, 81 AD3d at 448; Matter of Dubowy v City of New York, 305 AD2d 320, 321 [2003]). Concur — Andrias, J.P., Friedman, DeGrasse, Manzanet-Daniels and Gische, JJ.