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Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer

What steps are necessary to file a late notice of claim in a medical malpractice claim against a municipal hospital in New York City?

 

A:

Before you can bring a lawsuit against a municipal hospital in the five boroughs of Manhattan, there are specific to things that must be done first.

You must file a document called a “notice of claim” with the legal entity that technically owns and operates the municipal hospital. An example of some municipal hospitals include Bellevue Hospital, Jacobi Hospital, Queens General Hospital, North Central Bronx and Kings County Hospital. The legal entity that controls each of these municipal hospitals is known as New York City Health and Hospitals Corporation.

As of today, October 4, 2012, the law requires that this notice of claim be filed within 90 days from the date of the wrongdoing. Importantly, you cannot and should not rely on that information since the law can change and by the time you read this the law may have changed.

90 DAYS HAVE COME AND GONE. WHAT CAN YOU DO?

What can be done, if anything, if more than 90 days have gone by and you still believe you have a valid basis for a malpractice case against one of the municipal hospitals in the New York metropolitan area?

There is a procedure that requires us to get special permission from a judge in order to file a late notice of claim. However, there are many obstacles associated with this procedure.

A MEDICAL MALPRACTICE CASE MUST BE FULLY EVALUATED BY A MEDICAL EXPERT

In New York, the law requires that any claim or case involving medical malpractice be fully investigated and evaluated by a medical expert who confirms (1) that there is wrongdoing, (2) that the wrongdoing caused injury and (3) you injury is significant or permanent. All of those elements must be present before an attorney can file a lawsuit on your behalf.

In order to file a lawsuit against a municipal hospital in the New York City area there is an absolute requirement that a notice of claim be filed first, and that the company that owns and operates the hospital have a chance to investigate your claim and either accept or denied your claim. In addition to filing a timely notice of claim, the attorneys for New York City Health and Hospitals Corporation are entitled to, and in fact required to question you at a hearing that is commonly known as a “50-H” hearing held in their office.

Their goal is to try and understand what the problem was, what you believe was done wrong and what injuries you suffered as a result of the wrongdoing.

Before you are able to file your lawsuit here are the steps that must occur first:

  • Your notice of claim must be timely filed.
  • You must be questioned by the attorney for the hospital in a hearing known as a 50-H hearing, where I will be with you and prepare you for your questioning.
  • After your hearing, NYCHHC has 30 days to either accept or deny your claim.

Getting back now to the different steps that are necessary to file a late notice of claim,

  • We must first get your medical records.
  • I then must review them in detail.
  • Then they must be sent out to a medical expert to evaluate.
  • If the expert confirms that there is a valid basis for a case, it will be necessary to obtain a document from the expert that sets forth what records he has evaluated, explaining his credentials and his conclusions and rationale for why he believes there is a valid basis for case.
  • In addition, it will be necessary to prepare a sworn statement from you explaining to the court the reasoning why you were not able to timely file a notice of claim.
  • I am then required to provide a statement to the court explaining why we are requesting a late notice of claim and asking the court for special permission to file your claim late. I must support the claim with relevant case law and supporting documentation.
  • I have to file these papers with the court and provide a copy to the defense lawyers so they have an opportunity to respond.
  • The defense lawyers will most certainly respond and provide their own case law explaining why it would not be appropriate to give you special permission to file your late notice of claim.
  • Once all the legal documents have been responded to, the court will then have an opportunity to research the issue and render a decision.

If the court grants our request, we must then file a notice of claim with the New York City Health and Hospitals Corporation together with a copy of the court order. Then your 50-H hearing will be held soon after, and depending on whether they accept or reject your claim, that will determine whether you will need to proceed forward and bring a lawsuit.