Rochester Medical Malpractice and Personal Injury Lawyer Blog
Timeliness is a critical factor in bringing a medical malpractice claim against a public hospital in New York. Under the General Municipal Law, plaintiffs must file a notice of claim within 90 days of the alleged malpractice. However, courts may permit a late filing if specific conditions are met. A recent decision from a New York court illustrates how such requests are evaluated, particularly when actual knowledge, reasonable excuse, and prejudice are at issue. If you have questions about whether your injury may give rise to a viable claim, a Rochester medical malpractice attorney can adivse you of your rights.
History of the Case
It is reported that the plaintiff received treatment at a public hospital operated by the defendant between January 22 and February 7, 2024. She first presented to the emergency department on January 22 with abdominal and chest pain. After initial diagnostic imaging, she was discharged without surgical intervention. She returned two days later and was diagnosed with a gangrenous and perforated gallbladder. An emergency cholecystectomy was performed on January 24. The plaintiff was discharged on January 28 and returned for a follow-up on February 7.
It is alleged that in the months following her discharge, the plaintiff continued to experience significant abdominal and back pain. Nearly a year later, diagnostic imaging revealed that a remnant of her gallbladder had been left behind during the earlier surgery. On March 7, 2025, she underwent corrective surgery to remove the residual tissue. The plaintiff subsequently filed a petition for leave to serve a late notice of claim, asserting that the hospital staff negligently discharged her on January 22 and performed the initial cholecystectomy improperly.
It is further reported that the plaintiff’s co-petitioner, her spouse, asserted a derivative claim for loss of consortium and services. The petition for leave to file a late notice of claim was filed in March 2025, after the statutory 90-day period had expired but within the applicable one-year-and-ninety-day statute of limitations.
Notice and Excusable Delays in New York Medical Malpractice Cases
The court examined whether the defendant had actual knowledge of the essential facts of the malpractice claim within the statutory timeframe. In support of their petition, the plaintiffs submitted medical records from the January 22 emergency department visit and an expert affirmation stating that the plaintiff was prematurely discharged despite evidence of gallbladder disease. The expert also concluded that the delay in surgery contributed to the development of gangrene and perforation.
The court held that these records were sufficient to place the hospital on notice of a potential malpractice claim arising from the January 22 visit. Accordingly, the court found that the defendant had actual knowledge of the essential facts giving rise to the failure-to-diagnose and improper discharge allegations.
However, with regard to the claim involving the allegedly incomplete gallbladder removal on January 24, the court found no indication in the hospital’s own records that would have alerted the hospital to that aspect of the plaintiff’s injury. The expert’s opinion on this issue was based on diagnostic findings made well after the 90-day period, and those later records were not in the hospital’s possession. As such, the court held that the hospital lacked actual knowledge of the facts underlying the claim for retained gallbladder tissue.
Nonetheless, the court considered whether the plaintiff had a reasonable excuse for her delayed filing. The plaintiff submitted an affidavit explaining that she had been reassured by hospital staff that her pain could take up to a year to resolve and that no further intervention was needed. She did not pursue further evaluation until June 2024 and was not definitively diagnosed with a retained gallbladder until January 2025. She underwent corrective surgery in March 2025 and filed her petition for leave within one week of that procedure. The court held that this sequence of events demonstrated a reasonable excuse for the delay.
The court also considered whether the delay caused substantial prejudice to the defendant. The plaintiff argued that the hospital had access to all relevant records and that the physician who treated her was still employed at the facility. The court agreed, finding no particularized showing of prejudice by the hospital. Accordingly, it held that the delay would not impair the defendant’s ability to investigate or defend the claims.
As such, the court granted the plaintiff’s petition to file a late notice of claim as to both the January 22 discharge and the January 24 surgery, despite the lack of actual knowledge on the latter claim. The court emphasized that the plaintiff had presented a reasonable excuse and that the hospital failed to demonstrate substantial prejudice.
Speak with an Experienced Rochester Medical Malpractice Attorney
Claims against public hospitals and healthcare providers require strict compliance with notice requirements and deadlines. However, courts may grant relief when plaintiffs act diligently and provide reasonable justification for a delay. If you or a loved one has been harmed by negligent medical treatment, the experienced Rochester medical malpractice attorneys at DeFrancisco & Falgiatano Personal Injury Lawyers can help you determine the best course of action. Contact us at 833-200-2000 or reach out online to schedule a free and confidential consultation.
