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Can you file a "Late Notice of Claim" against a municipal hospital in NY?

First of all, claims against municipal hospitals in the greater metropolitan New York area include hospitals such as Jacobi Hospital, North Central Bronx, Kings County Hospital, Queens General Hospital, Elmhurst Hospital, Metropolitan Hospital, Bellevue Hospital among others.

If you suffered injury as a result of improper medical care at any one of these or other municipal hospitals in the five boroughs of New York City, the procedure for filing a lawsuit is entirely different than if it were a private physician or private hospital.

FIRST, YOU MUST FILE A NOTICE OF CLAIM

The law requires that before you are ever permitted to file a lawsuit, you must first file a “notice of claim” against the legal corporation that technically owns and operates these municipal hospitals. The corporation is known as “New York City Health & Hospitals Corporation,” also known as “NYCHHC."

WHEN MUST THE NOTICE OF CLAIM BE FILED?

A notice of claim for a medical malpractice action must be filed within 90 days of the date of the wrongdoing. This time period is valid as of today, September 29, 2012.

WARNING!! WARNING!!

It's extremely important to keep in mind that if you are reading this next week, next month, next year or sometime after this is online, under no circumstance can you rely on the time limit in this article. The reason why is that the law changes. The only way to know for sure whether your matter is timely is to pick up the phone and call me. I can answer your legal questions about whether your matter is timely.

WHAT IF IT'S BEYOND THE 90 DAYS?

What happens if more than 90 days have gone by and you realize you may have a potential medical malpractice case against Bellevue Hospital or another municipal hospital? Can you still file a claim and bring a lawsuit?

As with many legal answers, the answer is “Maybe.”

Here is what I mean.

A SPECIAL PROCEDURE

If more than 90 days have gone by after the wrongdoing occurred, there is a special procedure where we can ask a court for special permission to file a late notice of claim. There are many hurdles and obstacles associated with trying to file a late notice of claim. In some cases we will be successful. In others, we will not.

In New York, an important point to remember is that before any lawyer can bring a medical malpractice lawsuit he must have the case fully evaluated by a medical expert. The medical expert must confirm that (1) there was wrongdoing, (2) the wrongdoing caused injury and (3) the injury is significant and/or permanent. The medical expert must confirm each of those three items before an attorney is permitted to file a lawsuit for medical negligence.

Here is the basic procedure that must be followed in order to ask a court for special permission to file a late notice of claim:

HERE'S WHAT HAPPENS BEHIND THE SCENES

All of your medical records must be obtained. I must review all of the records and then forward all of your records to a qualified medical expert for evaluation. If the expert confirms there is a valid basis to proceed forward then I must ask the expert for his opinions and conclusions and have him draft a document known as an affidavit, which is a sworn document swearing to the truth of the facts and conclusions in that paper.

Then I must prepare a motion, which is a formal request to the court, explaining why you were late in filing a timely notice of claim and must include our expert's opinion and conclusions. We must also support our request with case law that backs up our position. We are then required to file the document in court and to deliver these papers to the defense attorneys who represent New York City Health and Hospitals Corporation.

The defense attorneys will then have an opportunity to respond to our motion papers. They will raise many different excuses that create legal obstacles and hurdles. Our motion papers and the defense attorney's opposition papers will be submitted to the court for evaluation. Then, we must await a decision from the court.

THE COURTS' ORDER

If the court denies your request, there is the possibility that you can appeal such a decision.

In the event the court accepts our request, then we must file your notice of claim in accordance with the instructions the judge indicates in his order. Once your late notice of claim is filed with court permission, then the attorneys for NYCHHC will have an opportunity to question you. That hearing is known as a “50-H” hearing and the name merely refers to a portion of the law governing procedures for filing a claim and a lawsuit against a municipal hospital in New York.

Once this 50-H hearing is held, the defense has 30 days to investigate your claim and to decide whether to resolve your claim before a lawsuit is filed. If 30 days have gone by and the defense has not resolved your case, it is only at that time that we are permitted to file a lawsuit on your behalf.

CAN YOU FILE A NOTICE OF CLAIM ON YOUR OWN?

Some people believe they can file a notice of claim on their own. They can.

However, it is extremely important not to make mistakes during this initial phase of the litigation process.

  • If you do not comply with all the technical legal requirements needed to put into the notice of claim, you may jeopardize your legal rights.
  • If your notice of claim is not timely filed you may jeopardize your legal rights.
  • If your notice of claim is not delivered to the proper place and proper legal entity, you are clearly jeopardizing your legal rights and in fact may lose your right to ultimately bring a lawsuit if you do not do this correctly.

My best recommendation is to seek an experienced medical malpractice attorney to handle this for you so you can spend your time recuperating and focusing on getting better.

WHAT TO DO IF YOU HAVE LEGAL QUESTIONS

If you think you might be a victim of medical malpractice at of our municipal hospitals here in New York and you have legal questions, I encourage you to pick up the phone and call me at 516-487-8207 or by e-mail at [email protected] I welcome your call.