Senior Trial Partner Michael F. Madden, Senior Associate Richard Wolf, and Associate John Rohan, obtained denial of a petition to serve a late Notice of Claim in a case alleging MCB’s client, a municipal hospital, rendered negligent care prenatally and during labor and delivery, resulting in the infant born with severe cognitive disabilities.
In opposition to the petitioner’s Order to Show Cause for leave to serve a late Notice of Claim, it was argued the petitioner failed to demonstrate that the hospital had actual knowledge of the essential facts of the claim within a reasonable time of the 90-day Notice of Claim period expiring because the petitioner failed to submit the relevant medical records in support of her application. It was also asserted the petitioner’s expert’s affidavit should not be considered because it lacked a certificate of conformity, required of an out of state expert, and further lacked a foundation for the opinions expressed.
Additionally, it was argued the petitioner failed to sustain her burden of demonstrating the hospital had actual knowledge of the essential facts of the claim, failed to demonstrate a lack of substantial prejudiced due to the late notice, and did not have a reasonable excuse for her nearly two-year delay in moving for leave to serve late Notice of Claim.
The Court agreed with our arguments and denied the petition, noting in its decision that the petition was not filed until over 18 months after the expiration of the 90-day period following accrual of the claim, and 13 months after the petitioner retained counsel. The Court summarily rejected each of the petitioner’s proffered excuses for her delay and further held that petitioner failed to sustain her burden with respect to notice. In addition, her expert's affidavit was inadmissible because it was predicated on the medical records, which were not submitted in support of the petition.
As a result of this decision, the petitioner is foreclosed from commencing a lawsuit seeking damages against the hospital arising out of the birth of the severely compromised infant, insulating the hospital from millions of dollars of exposure.