A state appeals court has denied a woman’s petition to file a late claim notice in a potential medical-malpractice action against the city’s public healthcare system, writing that she “failed to establish a reasonable excuse for her 10-month delay in filing a late notice” when she asserted that she didn’t know her forearm’s nerve was severed until she discovered it at a separate, private hospital…law.com, Woman Can’t File Med Mal Claim Notice 10 Months Late With No ‘Reasonable Excuse’, Jason Grant, Feb 2022
The court ruled that Gina Vijeu, should have filed a notice of claim for malpractice within 90 days of her last public hospital treatment on September 11, 2018.
In August 2018, Vijeu fell on a sidewalk, injured herself on broken glass, and was taken by ambulance to Jacobi Medical Center in Bronx.
Vijeu had surgery at the Jacobi hospital, during which surgical staff examined
and found no transection, or severing, of her right forearm’s median nerve.
Then, after last being seen at Jacobi on September 11, 2018, Vijeu received additional treatment at a private hospital, where “it was iscovered that Vijeu suffered from complete transected neuroma of her median nerve.
Only after that discovery at the private hospital did Vijeu file a claim notice against the city Health & Hospitals Corporation for malpractice.
Under New York state law, a notice of claim must be served on a government entity, when a litigant plans to sue the government entity within 90 days of the cause of action arising.
That 90 days ran out in 2018 regarding Vijeu’s malpractice claim against the Health & Hospitals Corporation, after she was last seen at Jacobi in September 2018.
The panel also indicated there was no evidence presented showing that Jacobi had missed the nerve transection diagnosis.