In re Hartlage

54 V.I. 446, 2010 WL 4961744, 2010 V.I. Supreme LEXIS 54
CourtSupreme Court of The Virgin Islands
DecidedSeptember 30, 2010
DocketS. Ct. Civ. No. 2009-0068
StatusPublished
Cited by6 cases

This text of 54 V.I. 446 (In re Hartlage) is published on Counsel Stack Legal Research, covering Supreme Court of The Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Hartlage, 54 V.I. 446, 2010 WL 4961744, 2010 V.I. Supreme LEXIS 54 (virginislands 2010).

Opinion

OPINION OF THE COURT

(September 30, 2010)

CABRET, J.

Michael A. Hartlage moved the Superior Court to permit him to file a late claim against the Government of the Virgin Islands under the Virgin Islands Tort Claims Act1 (the “Tort Claims Act” or the “Act”). After the Superior Court denied Hartlage’s motion, and a renewed motion seeking the same relief, Hartlage moved for reconsideration. The Superior Court denied Hartlage’s motion for reconsideration, and he filed this appeal. Hartlage asserts that the Superior Court abused its discretion in denying his motion for reconsideration because his motion to file a late claim complied with the Act’s requirements for filing late claims. For the reasons which follow, the Superior Court’s order denying Hartlage’s motion will be affirmed.

I. FACTS AND PROCEDURAL BACKGROUND

The record shows that on May 1, 2007, Hartlage was involved in an automobile accident on St. Croix and was transported to the Juan F. Luis Hospital (the “Hospital”), a government-owned facility, for treatment. Upon arrival at the Hospital, Hartlage was evaluated by Dr. Wendell J. Gorum. Dr. Gorum apparently decided that surgery was necessary to treat an injury to Hartlage’s arm, and during the early morning hours of May 2, 2007, he operated on Hartlage. According to Hartlage, during the [448]*448surgery Dr. Gorum “negligently performed an operation on [his] arm[,] negligently attempted to amputate [his] left arm, then negligently attempted to correct his action.” (App. 16.) Hartlage claims that he “was never informed that he would need to amputate his left arm,” (App. 16) and that another physician was required to perform three subsequent operations to repair the damage. Two of these remedial operations were performed on May 4, 2007 and May 11, 2007, and the third was performed in 2008.

On February 26, 2009, Hartlage filed a miscellaneous action in the Superior Court moving the court for permission to file a late claim against the Government of the Virgin Islands. In support of his motion, Hartlage claimed that he had “a reasonable excuse for the late filing, the Government had timely and actual knowledge of the incident, and there is no substantial prejudice to the Government in allowing the late filing.” (App. 4.) Hartlage attached his affidavit to the motion, in which he maintained that due to his medical condition, pain treatment, and ignorance of the procedural requirements of the Tort Claims Act, he missed the ninety-day deadline for filing a claim or notice of claim against the Government. Hartlage stated that he filed a notice of claim as soon as he learned of the requirement and that the notice was filed within the two-year limitation period. Finally, Hartlage averred that “there is no substantial prejudice to the [Hospital] and/or [Dr. Gorum] in that there was actual knowledge of the medical malpractice of [Dr. Gorum] and immediate action was taken by the hospital to terminate the services of Dr. Gorum ...” (App. 6.)

The Superior Court denied the motion without prejudice, ruling that Hartlage’s motion and affidavit failed to meet the threshold requirements for filing a late claim under the Tort Claims Act. Specifically, the court found that Hartlage did not present a reasonable excuse for the late filing, did not show that the Government had timely and actual knowledge of the incident, and did not file his proposed claim with the motion as required by title 33, section 3409(c) of the Virgin Islands Code. In addition, because the claim was for medical malpractice, the court ruled that Hartlage was required, but failed, to comply with the requirements of the Medical Malpractice Act.2

[449]*449On April 21, 2009, Hartlage renewed his motion for leave to file a late claim against the Government under the Tort Claims Act. Hartlage attached a copy of a verified complaint to the motion, filed a second supporting affidavit, and incorporated his first affidavit. In his second affidavit, Hartlage elaborated on the reasons why he did not timely file the claim. The Superior Court, however, denied Hartlage’s renewed motion in an order entered on April 30, 2009. While the court found that Hartlage had presented a reasonable excuse for the late filing, ruling that “his medical condition was an ongoing deterrent in filing the notice of intention” (App. 30), it concluded that he again neglected to establish that the Government had timely, actual notice of the facts constituting the claim. Referring to Hartlage’s first affidavit, in which he averred “that there was actual knowledge of the medical malpractice of [Dr. Gorum] and immediate action was taken by the hospital to terminate [his] services” (App. 6), the court ruled that Hartlage merely asserted “a conclusory statement that lacks the factual basis to suggest that the Government or the appropriate governmental agency had notice of Hartlage’s claim.” (App. 31.) The court found that “the Government was first made aware of Hartlage’s claim on February 2, 2009, when he served his ‘Notice of Intention to File Claim’ on the [Government].” (App. 32.) The court concluded that this notice, which was given twenty-one months after the alleged malpractice, was too late and “severely hamper[ed] the Government’s ability to evaluate the claim, prepare its defense, or take any necessary course of action.” (App. 33.) Thus, while the court found that Hartlage had now complied with the other requirements for filing a late claim, because he had not established that the Government had actual knowledge of the facts underlying the claim, it denied his motion to file the late claim.

On May 5, 2009, Hartlage moved the Superior Court to reconsider its denial of his renewed motion. In his Motion for Reconsideration, Hartlage asserted:

1. This Court in its April 30,2009, denial of the Renewed Motion to File a Late Claim found that the Government had no actual notice of the facts constituting Hartlage’s claim, and thus the Government would be substantially prejudiced.
2. The attached Affidavit of Michael A. Hartlage attests to the knowledge which the Government had and the fact that there is no substantial prejudice to the Government.
[450]*4503. This reconsideration is necessary to prevent manifest injustice as would occur if [Hartlage] is not allowed to pursue his claim.

(App. 35.) Hartlage actually attached two new affidavits to his motion, his own and the affidavit of his sister. In these new affidavits, Hartlage and his sister elaborated on the Government’s purported knowledge of the malpractice, each stating that Dr. Gorum had been fired almost immediately after the surgery “because of the operation he performed on [Hartlage].” (App. 37, 39.)

In an order entered on June 24, 2009, the Superior Court denied Hartlage’s motion for reconsideration. The court found that in his motion for reconsideration Hartlage was simply rearguing matters that had been previously considered by the court and that the affidavits contained no new facts showing that the Government had timely, actual notice of his claim. On July 22, 2009, Hartlage filed a notice of appeal stating, in pertinent part, that he was appealing “that certain Judgment Order entered on June 24, 2009.” (App. 1).

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Cite This Page — Counsel Stack

Bluebook (online)
54 V.I. 446, 2010 WL 4961744, 2010 V.I. Supreme LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hartlage-virginislands-2010.