A four-month delay by a law firm in bringing a motion seeking permission to file a late claim was not unreasonable given the complexity of the medical malpractice action at issue, a judge has decided. Presiding Court of Claims Judge Richard Sise (See Profile) ruled that while there do not appear to be precedents setting time frames for a law firm’s evaluation of the viability of a malpractice case, the four months that it took Duffy & Duffy in Uniondale to review the circumstances surrounding the death of Joan Abruzzo does not appear excessive. Sise noted in Abruzzo v. State of New York, 1012-028-536, that attorneys must be allowed reasonable time to “gather enough information to make an intelligent assessment” of a malpractice case, including consultation with a medical expert.
“Given the complexity of the medical conditions suffered by the decedent and the requirement that the application be accompanied by an expert’s affidavit, the Court concludes that the four-month period of delay awaiting the report of the expert is excusable,” Sise wrote from Albany. He also accepted the excuse of plaintiff Paul Abruzzo that he was too shaken by the sudden death of his wife at Stony Brook University Medical Center following a 2010 car accident to meet the deadlines for filing a medical malpractice claim against the hospital. Sise said the delay was extended by the four months it took Duffy & Duffy to evaluate the case after the family retained the firm in September 2011.
Sise said that while ignorance of court filing deadlines is generally not an excuse, he would make an exception and allow the late filing given the “very real life pressures” on Abruzzo in dealing with his wife’s death and caring for the couple’s four children.