Hill v. New York City Health & Hospitals Corp.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered August 6, 2015, which, in an action for medical malpractice, granted defendant’s motion to dismiss the complaint, reversed, on the law, without costs, and the motion denied.

Plaintiff was an inpatient at Lincoln Medical and Mental Health Center (Lincoln Hospital) between August 26 and September 30, 2005. On September 17, 2005, after suffering complications from treatment of an incarcerated hernia, plaintiff underwent amputation of her left leg above the knee. Plaintiff ultimately commenced this action, alleging that Lincoln Hospital’s staff had committed medical malpractice and that defendant New York City Health and Hospitals Corporation (HHC), which owns Lincoln Hospital, was responsible for her injuries.

On January 25, 2006, plaintiff served a notice of claim on defendant HHC. At the General Municipal Law § 50-h hearing in June 2006, plaintiff testified that while her last actual medical treatment at Lincoln Hospital occurred on October 19, 2005, when hospital personnel removed the sutures from her leg, she received a follow-up appointment to return to Lincoln Hospital on October 24, 2005. Plaintiff stated that she arrived at Lincoln Hospital for treatment on that date, but was informed that the staff could not locate her medical records and that she should return to the Hospital in one week, on October 31, 2005. Plaintiff testified that she did, in fact, return on October 31, only to have the staff inform her that they did not accept her insurance and that she should seek treatment elsewhere.

*431On July 26, 2006, plaintiff moved for an order deeming the notice of claim timely served on the basis of the continuous treatment doctrine, or, in the alternative, for leave to serve a late notice of claim nunc pro tunc. Specifically, plaintiff argued, her last treatment date was October 31, 2005 and thus, she had timely served her notice of claim on January 25, 2006.

By order dated September 14, 2006, the IAS court granted the application to deem timely the notice of claim “if it is eventually determined that the court had jurisdiction to entertain the application.” In so doing, the IAS court directed plaintiff to serve on HHC a copy of the January 25, 2006 notice of claim “in the manner prescribed by law.” On July 25, 2007, plaintiff did, in fact, serve the notice of claim on HHC.

HHC then moved to dismiss the complaint. On the motion, HHC asserted that in the September 14 order, the IAS court had held that plaintiffs motion would be granted only if her medical records showed that the continuous treatment doctrine applied. Thus, HHC concluded, plaintiffs original January 25, 2006 notice of claim was untimely because there was no continuous treatment after October 19, 2005.

The IAS court granted defendant’s motion and dismissed the complaint. In so doing, the court found that plaintiffs last date of medical treatment occurred on October 19, 2005, and therefore, plaintiff was required to file the notice of claim no later than January 17, 2007, one year and 90 days past the accrual date, the date by which the action had to be filed. Therefore, the court found that the notice of claim was untimely and a nullity. We now reverse.

As noted above, plaintiffs 50-h hearing testimony and her affidavit in support of the motion to deem the notice of claim timely served each state that plaintiff was still in a relationship of care or treatment with Lincoln Hospital until October 31, 2005 because both she and the Hospital expected the Hospital healthcare providers to continue to care for plaintiffs residual limb (see Richardson v Orentreich, 64 NY2d 896, 899 [1985] [“where the physician and patient reasonably intend the patient’s uninterrupted reliance upon the physician’s observation . . . and responsibility for overseeing the patient’s progress, the requirement for continuous care and treatment for the purpose of the (s)tatute of (Limitations is certainly satisfied”]; cf. Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 339 [1997] [continuous treatment rule did not apply where plaintiff had no intention of returning to defendant hospital for treatment]). If plaintiff was, in fact, considered to be under treatment until that date, that treatment would *432render timely the notice of claim that she served on January 25, 2006. Although through no fault of her own, plaintiff apparently was not examined at the October 24 or October 31 appointments, we can reasonably conclude that the doctor-patient relationship continued past October 19, 2005. Specifically, the record suggests that plaintiff and her doctors explicitly anticipated that she would receive further treatment for her leg, thus giving her until one year and 90 days from October 31, 2005 — the last day that plaintiff returned for an appointment at the Hospital — to serve a notice of claim (see Harris v Dizon, 60 AD3d 495 [1st Dept 2009]).

HHC failed to come forward with any evidence to support its motion to dismiss. On the motion, HHC, offered a printout of a so-called “MPI inquiry,” which, according to the supporting affirmation of defendant’s counsel, is “a printout of information maintained by [the Hospital’s] Patient Accounts.” According to counsel’s affirmation, the printout purportedly represents the dates of plaintiff’s visits to the Hospital.

But the MPI inquiry does not support HHC’s motion. First of all, the MPI inquiry is neither certified nor authenticated. Rather, the document is accompanied only by counsel’s affirmation, and thus lacks probative value (see Verette v Zia, 44 AD3d 747, 748 [2d Dept 2007]). Additionally, because no one with knowledge has authenticated or explained the document, it is not altogether clear from the face of the MPI inquiry what information that document contains.* What is clear, however, is that the MPI inquiry does not constitute a medical record and does not give any accessible information about patient treatment.

At any rate, even assuming that the MPI inquiry does purport to show the dates of plaintiff’s treatment at Lincoln Hospital, it still would not be relevant, as plaintiff does not claim that she was actually treated on those dates. On the *433contrary, plaintiff states that she arrived at the Hospital for scheduled treatment on those dates and was turned away, and no one from HHC with knowledge of plaintiffs patient history disputes her assertion. Given plaintiffs account of her visits to the Hospital on October 24 and October 31, it is perfectly plausible that the MPI inquiry would not show that she appeared for treatment, as she was not actually treated on those days even though she arrived there with the expectation that she would be. The MPI inquiry — which, as noted above, was uncertified and unauthenticated — therefore fails to support HHC’s assertion that plaintiff was not scheduled for any treatment on those days. Indeed, in the affirmation in support of the motion to dismiss, HHC’s counsel concedes that the Hospital’s plan was for plaintiff to return to the surgery clinic on October 24, 2005 to have a test performed on that day. Notably, in light of the assertions in the affirmation, this concession is apparently based on medical records that HHC did not produce on its motion.

Concur — Acosta, Mazzarelli and Moskowitz, JJ.

According to Wikipedia (https://en.wikipedia.org/wiki/ Enterprise_master_patient_index, accessed on December 14, 2016), an “enterprise master patient index” (which is often used synonymously with “master patient index,” or MPI), is a “database that is used across a healthcare organization to maintain consistent, accurate and current demographic and essential medical data on the patients seen and managed within its various departments.” Further, “the essential patient data includes name, gender, date of birth, race and ethnicity, social security number, current address and contact information, insurance information, current diagnoses, most recent date of hospital admission and discharge (if applicable), etc.” (id.). It is not altogether clear, then, that the MPI would have an entry for a date that plaintiff was not actually treated; certainly, that is not a determination any court can make on the record as it currently stands.