Ellison v Rochester Gen. Health Sys.

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Ellison v Rochester Gen. Health Sys. 2017 NY Slip Op 33086(U) December 19, 2017 Supreme Court, Monroe County Docket Number: 2014-4740 Judge: William K. Taylor Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE NAOMI J . ELLISON, AS ADMIN IS TRATOR OF THE ESTATE OF RIC HARD ELLISON Plaintiff, DECISION & ORDER Index #2014-4740 vs . ROCHE STER GENERAL HEALTH SYSTEM, (AKA) ROCHESTER GENERAL HOSPITAL , THENDRIX H. ESTRELLA, MD, DOUGLAS BOPP, ALAN LANGTON, BRIAN SHONITSKY , PATRICK GLENDE, and NICHOLAS TORRES, 1 Defendants . Special Term Dec ember 14, 201 7 Appearances: Fra nc is M. Ciardi, Esq ., for Pla int iff Emily D. Crowley , Esq . for Defendants Taylor, J., Plaintiff commenced this negligence and medical malpractice action seeking damages for the death of her bro t her, Richard Ellison . The medica l malpractice claim is against Defendant Dr . Thendrix H. Estrella ("Dr . Es tr ellan) , and the negligence claims are against Defendant Rochester General Hospit al ("RGHn) and Defendants Douglas Bopp, Alan Langton, Brian Shonitsky, Patrick Pursuant to an Order of Supreme Court (Stander, J . ) dated March 23 , 2015 , Defendants Brad Knight , Anthony Sinclair, and Salvatore Mitrano were di smiss ed from the litigation. On March 31 , 2017 the parties stipulated to the cap tion being amended to accurately reflect the remaining defendants . 1 [* 2] Glende, and Nicholas Torres (collectively, the "Security Officers"), who were employed by RGH as Safety and Security Office rs and called upon to subdue an agitated Mr. Ellison following his arrival at the Emergency Department. Defendants now move for summary judgment pursuant to CPLR 32 1 2 . For the reasons that follow, Defendants ' motion is granted in its entirety . Plaintiff's complaint alleges two causes of action that this Court can discern - medical malpractice and negligence. At oral argument Plaintiff narrowed the alleged negligence morass to the following claims: ( 1) failure to train as against RGH; ( 2) failure to render care in a timely fashion to Mr. Ellison as against the Security Officers; and (3) negligently placing Mr. Ellison in a prone position during his restraint as against the Security Officers . Plaintiff conceded to dismissal of the medical malpractice claim against Dr. Estrella and, in any event, he met his in itia l burden and Plaintiff failed to offer any evidence in response. Thus, Defendants' motion for summary judgment as to the medical malpractice claim against Dr . Estrella is hereby GRANTED . As to Plaintiff's failure to train claim, her complaint as amplified by the bill of particulars appears to argue that RGH is vicariously responsible for the alleged negligence of its security officers in handling patients presenting to the hospital 2 [* 3] with mental illness because RGH did not properly train its emp loyees . See Attorney Affidavit of Christophe r A. DiPasquale, Esq . at Ex. A Defendants ' ~ 30 ; Ex. C ~~8, 13. Plaintiff's claim concerning failure to render care and/or preventing Mr . Ellison from receiving medical care appears to allege that the Security Officers failed to care for him and/or prevented EMTs from access ing him to provide care after he was restrained . See Attorney Affidavit of Christophe r A. DiPasquale, Esq. at Ex . C ~13 . Plaintiff ' s final claim is that Mr . Ellison died as a result of the manner in which he was positioned by the Security Office rs during his restraint . See Atto rne y Affidavit of Christophe r A . DiPasquale, Esq. at Ex. A ~28; Ex. C ~13 . Applying the well - settled standards for summary judgment 2 , Defendant RGH plainly met its initial burden . Defendants have submitted ample evidence demonstrating that the Security Officers were trained and lice nsed extensively by RGH . All Security Officers are specifically trained to deal with emotionally disturbed individuals as well as the app rop riate continuum of 2 It is well-settled that " the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law , tender ing sufficient evidence to demonstrate the absence of any material issues of f act " necessitating a trial . Alvarez v Prospect Hosp., 68 NY2d 320 , 32 4 (1986) ; CPLR 3212(b) . Proof offered by t he moving party must be in admis sible form. See Zuckerman v Cit y of New York , 49 NY2d 557 , 562 {1980); Dix v Pines Hotel, Inc ., 188 AD2d 1007 (4th Dept 1992) . And once a prima facie showing has been made, "the burden shifts to the party opposing the motion for summary judgment t o produce evidentia ry proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action ." Alvarez , 68 NY2d at 324 ; see also, Mortillaro v Rochester Gen . Hosp . , 94 AD3d 1497 , 1499 {4th Dept 2012). 3 [* 4] force and proper use of restraints. Christopher A. DiPasquale, Esq. at See Attorney Affidavit of ~~41-42. With the burden shifted Plaintiff has not offered any proof whatsoever to address her failure to train theory of negligence . Indeed, to the contrary, Plaintiff made numerous references to the comprehensive RGH protocols and manuals as well as by stating that RGH had "established policy and procedures . .. " Affirmation of Frank M. Ciardi, Esq. at ~38 . See Attorney Thus, Defendants' motion for summary judgment as to the failure to train claim against RGH is hereby GRANTED . Defendant Security Officers have likewise met their initial burden as to the negligence claims against them. To be liable under common-law negligence, it must be shown defendants owed a duty to plaintiff, that a breach of that duty occurred, and that the breach was a proximate cause of the claimed injury . See generally, Roberson v Wyckoff Heights Medical Ctr ., 123 AD3d 79 1, 791 (2d Dept 2014). Even i f negligence and injury exist , "the negligent party may be held liable only where the alleged negligence is found to be a proximate cause of the injury ." Canonico v Beechmont Bus Serv., Inc . , 15 AD3d 327, 328 (2d Dept 2005) . Applying those standards here, the Security Officers are entitled to judgment as a matter of law. These officers were trained by RGH in appropr iately responding to aggressive and 4 [* 5] combative individuals - as the record plainly shows Mr . Ellison was . The record demons trates the officers used necessary and reasonable force in securing Mr . Ellison and the deposition t es timony , the autops y, a nd the expe rt affidavit provided b y Dr . LaPoint show t h at Mr . El lison was not subjected to any exc e ssive pressures that could result in asphyxia . reflects tha t And the record further u pon being subdued the Security Officers as s isted or permitted EMTs to c he ck on Mr . Ellison ' s pulse and did n ot in any way prevent him from being cared for during the less than ten minutes from h is arriva l on scene , restraint , and ultimate c a rdiac arre s t . Put simply , the Se cu r ity Offic ers have established their entitlement to judgment as a matter of law under all t h eories of negligence advanced by Plaintiff . Wit h t he burden s hifted , Plainti ff relies upon t h e expe rt affidavit of Dr . Michael M. Baden . Dr . Baden challenges Dr . LaPoint ' s reliance on excited delirium syndrome and also opines t hat Mr . Elli s on ' s place ment in a p rone posit ion was the proximate caus e of his death as a result of positional asphyxia . See Affidavit of Michael M. Baden MD at ~19. Dr . Baden ' s affidavit o pines that Mr. Ellison wa s pushed to the ground during a struggle a n d that , wh i le he was in the prone position , compression on Mr . Ellison's back by the Security Officers coupled with h is morbid obesity re s ulted in positional a s p h yxia rather than c omplicati o ns from exci t ed delirium . See Affidavit 5 [* 6] of Michael M. Baden MD at ~~14, 19. Such conflicting opinions and the resultant credibility battle of experts would not normally be suitable to be reso lved by way of summary judgment. See ~' Cook v Peterson, 137 AD3d 1594 , 1597 (4th Dept 2016). Where, however, an expe rt' s opinions are based on assumption s not supported by the record, such opinions will be considered speculative and thus insufficient to raise a triable issue of fact. See ~, Cannarozzo v County of Livingston, 13 AD3d 1180 (4 th Dept 2004) . Such is the case here. As Defendants correc tly obse rve , there is nothing in the record to suggest the Security Officers exerted downward compression on Mr. Ellison's back in such a manner that would have caused asphyxia. Nor could Plaintiff at oral argument point the Court to anything in the record supporting such an opinion. While Plain ti ff articulated that various individuals were involved in restraining Mr. Ellison's limbs as he thrashed about, nothing could be articulated tha t would support Dr . Baden's opinion concerning back compression . The suggesti'o n at oral argument that "something must have caused Mr. Ellison's death" is not sufficient to raise a triable issue of fact . This Court must have fealty to the proof submitted, and Plainti ff has simply failed to meet her burden . Even assuming arguendo that Defendants' negligence had been established, the proximate cause of Mr. Ellison 's death was 6 [* 7] complications from excited delirium syndrome and not the actions (or inactions) of the Security Officers . As noted above , Mr. Ellison's cause of death is described as a "[ c]omplication of excited delirium." See Attorney Affidavit of Christopher A. DiPasquale, Esq . at Exhibit Y. Dr. Scott LaPoint, who conducted an autopsy on Mr. Ellison, described excited delirium syndrome as a "well-described phenomenon with a characteristic pattern of behavior and timing of death usually associated with a specific history of drug abuse, particularly cocaine ." Dr . Scott F. LaPoint, MD at ~21. See Affidavit of The behaviors associated with the syndrome manifest as "severe agitation, paranoia, excitability , increased physical stre ngth and decreased response to pain ... often requir[ing) several people to restrain [the) individual. See Affidavit of Dr . Scott F. LaPoint, MD at ~22 . Death may occur either during the heightened state of excited delirium or when the body backs down from the overload of excitatory hormones resulting in a ca rdiac arrhythmia. Affidavit of Dr. Scott F. LaPoint, MD at~~ See 23 and 24. Here, Mr . Ellison met all the factors as one to suffer from excited delirium syndrome : he weighed over 300 pounds, had an abnormally enlarged heart, tested positive for recent cocaine use , was schizophrenic, upon arrival at the hospital became belligerent and threatened to kill people, and required numerous security officers to subdue him - injuring at least one officer 7 [* 8] during the mele~ . In Dr . LaPoint's expert medical opinion, Mr . Ellison died from complications of Excited Delirium Syndrome with no evidence whatsoever pointing to his cause of death resulting from positional asphyxia . MD at ~25-53 . See Aff i davit of Dr . Scott F . LaPoint, As Dr . Baden's expert opinion is not based on evidence in the record, that proof fails to establish causation even if one were to assume negligence on the part of the Security Officers . Accordingly, Defendants' motion for summary judgment is hereby GRANTED in its entirety and the complaint is DISMISSED. This constitutes the decision and order of this Court . m K. Taylor Supreme Court ustice December 19, 2017 8

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