Snyder v State of New York

[*1] Snyder v State of New York 2020 NY Slip Op 20327 Decided on December 4, 2020 Court Of Claims Leahy-Scott, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 4, 2020
Court of Claims

Marvin Snyder, Claimant,

against

State of New York, Defendant.



122234



For Claimant:

S. Robert Williams, PLLC

By: S. Robert Williams, Esq.

and

Michael R. O'Neill, Esq.

For Defendant:

Hon. Letitia James, New York State Attorney General

By: Bonnie Gail Levy, Esq., Assistant Attorney General
Catherine E. Leahy-Scott, J.

Claimant Marvin Snyder commenced this Claim on January 11, 2013 seeking damages for the failure of the Department of Corrections and Community Supervision (DOCCS) to timely treat and diagnose a heart attack Claimant suffered on February 17, 2012 at Auburn Correctional Facility. Issue was joined on March 18, 2013. An Amended Claim was filed on September 12, 2019 and an answer to the Amended Claim was filed on October 10, 2019.

On February 17, 2012 at approximately 12:00 p.m., Claimant, then an inmate at Auburn Correctional Facility, began experiencing chest pain (see Affirmation of Bonnie Gail Levy, Assistant Attorney General, Esq., dated August 24, 2020 [Levy Aff] Ex 12 [FN1] [Claimant's First [*2]EBT], at 51-52).[FN2] This pain intensified over the next hour and began to spread to his neck, left arm, and left shoulder (see id. at 55). After reporting his pain to a correction officer, Claimant was brought to the infirmary where he met with Nurse Annette Boyd (Nurse Boyd) at approximately 3:00 p.m. (see id.; Ex 15 [Nurse Boyd EBT] at 43).

Upon arrival to the infirmary, Claimant explained to Nurse Boyd that he had been experiencing severe chest pain for the previous two hours (see Nurse Boyd EBT at 51). In response to Claimant's complaint, Nurse Boyd took Claimant's vitals and attempted to administer an electrocardiogram (EKG); however, Nurse Boyd could not get the EKG machine to work (see id. at 46-47). After Nurse Boyd determined the EKG machine was inoperable, she contacted Erie County Medical Center (ECMC) to provide telemedicine services to Claimant (see id. at 50).

Telemedicine, or telemed, is "providing medical consultation for patients over a link through a television or through a computer with television-type services" (Levy Aff, Ex 19 [Manka EBT], at 7). ECMC provides telemedicine services to Auburn Correctional Facility pursuant to a contract (see Affirmation of Michelle Rudderow, Esq. [Rudderow Aff], Ex L [Contract]). Nurse Boyd explained she sought ECMC's telemedicine services because the Auburn Correctional Facility doctor was not available to see Claimant (see Nurse Boyd EBT, at 50).

Claimant's telemedicine consultation was handled by Jennifer McCaul (f/k/a Jennifer Teleuk), a Physician Assistant (PA McCaul). PA McCaul received a patient referral form from DOCCS detailing Claimant's vital signs and medical history. Specifically, the record stated

"29-year-old male with thoracic outlet syndrome. Complaining of chest pain time two hours. Pain also in neck and arms. Positive shortness of breath. Facility unable to obtain EKG, 'because machine won't work.' No known injury. States same pain as he has had in the past"

(Levy Aff Ex 21 [PA McCaul EBT], at 17). PA McCaul diagnosed Claimant with left upper extremity pain (see id. at 29). PA McCaul considered ordering an EKG to be performed due to Claimant's complaint of chest pain, but ultimately did not order one because Claimant's vitals were good, he was "29[,] . . . ha[d] a history of thoracic outlet syndrome[,] and . . . told [her] he's had this same pain in the past which is not concerning for something acute to be occurring" (id. at 52; see id. at 32-33, 63-65, 71-72). PA McCaul ordered that Claimant be administered Tylenol No.3 and Ultram and returned to his cell (see id. at 36, 50-51, 65; Nurse Boyd EBT, at 49). Dr. Michael Manka (Dr. Manka), the attending physician at ECMC, agreed with PA McCaul's assessment of Claimant's condition and signed the telemed form with PA McCaul's medical orders shortly after her determination was made (see PA McCaul EBT at 15-16; Manka EBT, at 57-58).

After the telemedicine consultation was complete, Nurse Boyd administered Claimant's medication per the telemed orders, observed Claimant for 15 minutes, and then sent him back to his cell at approximately 4:00 p.m. (see Nurse Boyd EBT, at 77).

Claimant remained in his cell until approximately 10:00 p.m. when Correction Officer Christopher Waterman (Correction Officer Waterman) noticed Claimant "was on his bars all sweaty, pale and . . . obviously sick" (Levy Aff, Ex 18 [Waterman EBT], at 16). Claimant was immediately transferred to the infirmary where he met with Nurse Richard Sharples (Nurse [*3]Sharples) at approximately 10:30 p.m. (see id. Ex 17).

Prior to Claimant' arrival to the infirmary for the second time, Nurse Boyd informed Nurse Sharples of Claimant's earlier infirmary visit, including the purported inoperability of the EKG machine (see id. Ex 16 [Sharples EBT], at 9). Nurse Sharples fixed the EKG machine prior to Claimant's second arrival to the infirmary by shutting the machine down, unplugging and then plugging the machine back into place, and rebooting it (see id.). The EKG machine had been rebooted in such manner approximately four times in the prior three to four years (see id. at 10).

Upon Claimant's arrival to the infirmary for the second time, Nurse Sharples performed an EKG which revealed Claimant was having a heart attack (see id. at 22). After a second telemedicine consultation with ECMC, Claimant was transferred to SUNY Upstate Medical University Hospital (Upstate) for emergency treatment (see Rudderow Aff Exs R, S). At Upstate, Claimant was diagnosed with "[a]cute ST elevation myocardial infarction[,] . . . [a]cute systolic heart failure[,] . . . [a]cute left ventricular thrombus[, and] . . . antiphospholipid antibody syndrome of hypercoagulable state," with an ejection fraction of 25-30% (see id. Ex S). Claimant underwent an emergency cardiac catheterization and had an aortic balloon pump inserted (see id.). Claimant subsequently received an implantable cardioverter defibrillator (ICD) in April 2014 (see Claimant's First EBT, at 97) and has received follow up care from Central New York Cardiology regarding same (see Levy Aff Exs 39-40).

Claimant now moves for summary judgment on its first, second, third, eighth and ninth causes of action or, alternatively, an order dismissing Defendant's second and third affirmative defenses (M-95437). The first cause of action alleges that Defendant was negligent and departed from accepted standard of medical practice in treating Claimant's heart condition. As part of the first cause of action, Claimant avers that Defendant was negligent "in failing to maintain, repair or have a properly functioning EKG machine" (Rudderow Aff, Ex C [Amended Claim] ¶ 30).

The second cause of action alleges Defendant breached its "duty of care to monitor [Claimant's] condition, to properly diagnose and/or treat said condition, [and] to ensure that . . . [C]laimant received prompt and adequate medical attention" (id. ¶ 37).

The third cause of action asserts Defendant is vicariously liable under the doctrine of respondeat superior (see id. ¶¶ 40-45) in that Defendant should be held liable for the treatment decisions made during the telemedicine consultation (see id. ¶¶ 15-17).

The fourth cause of action alleges a claim for negligent hiring, retention, and training of Defendant's employees with regard to diagnosing and treating Claimant (see id. ¶¶ 47-49).

The eighth cause of action alleges a claim for medical malpractice premised upon the consequences of Defendant's delay in treating Claimant's heart attack. In particular, the eighth cause of action states that Defendant's failure to render prompt treatment required the placement of a stent and "necessitated the immediate placement of a defibrillator implant that . . . Defendant delayed providing" (id. ¶ 70). Claimant avers that Defendant has continued to fail to provide adequate medical care to Claimant by "failing to provide . . . Claimant with an ICD (implantable cardioverter defibrillator) scans [sic] every 90 days; allowing the battery level in . . . Claimant's defibrillator to reach levels that are considered to be dangerous; allowing conditions to exist that caused . . . Claimant's defibrillator battery to discharge causing additional damage to . . . Claimant" (id. ¶ 71). The ninth cause of action alleges a Claim for prima facie tort.

Defendant opposes Claimant's motion and cross-moves to dismiss Claimant's first, second, third, sixth, seventh, eighth and ninth causes of action pursuant to CPLR 3211 and for summary judgment on Claimant's first, second, third, fourth, eighth and ninth causes of action [*4](CM-95852). Defendant separately seeks a motion in limine permitting the introduction of evidence at trial of certain prison, mental health, and medical records involving Claimant's treatment after July 7, 2020 and allowing Defendant's experts to rely on same in preparing their reports and testifying at trial (M-95853). Because a portion of Defendant's cross motion to dismiss implicates this Court's jurisdiction, the Court will address it first.

Defendant moves to dismiss Claimant's sixth and seventh causes of action pursuant to CPLR 3211 (a) (2) on the ground that the Court lacks subject matter jurisdiction over such claims. The sixth and seventh causes of action allege violations of Claimant's rights under the US Constitution. It is well settled that "claims for damages against the State based upon alleged deprivation of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; see Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503, 504 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]; Russell v State of New York, UID No. 2017-041-501 [Ct Cl, Milano, J., Mar. 2, 2017]). Consequently, Defendant's motion to dismiss Claimant's sixth and seventh causes of action are granted.

Additionally, Defendant moves pursuant to CPLR 3211 (a) (7) to dismiss Claimant's ninth cause of action alleging a prima facie tort for failure to state a cause of action. Public policy prohibits a claimant from asserting a claim for prima facie tort against the State of New York (see Cavanaugh v Doherty, 243 AD2d 92, 101 [3d Dept 1998]; V.V. v State of New York, UID No. 2019-032-074 [Ct Cl, Hard, J., Dec. 16, 2019]; Mahoney v State of New York, UID No. 2015-009-100 [Ct Cl, Midey, Jr., J., Sept. 1, 2015]; see also Van Buskirk v Bleiler, 46 AD2d 707, 707-708 [3d Dept 1974]). Accordingly, Defendant's motion to dismiss Claimant's ninth cause of action alleging prima facie tort is granted.

Defendant also seeks dismissal of Claimant's first, second, third, and eighth causes of action for the failure to specifically name ECMC in the Amended Claim (Levy Aff ¶ 7). In opposition, Claimant contends that the Amended Claim misnames ECMC as "University Emergency Medical Services" (see Amended Claim ¶¶ 7-8,15-17) and that such error is not fatal to the Claim because the Court may permit further amendment of the pleadings to conform to the evidence pursuant to CPLR 3025 (c) (see Affirmation of S. Robert Williams, Esq. & Michael R. O'Neill, Esq. ¶¶ 57-61). University Emergency Medical Services provides physician services to the emergency department at ECMC, including telemedicine service for inmates in custody of DOCCS (see Manka EBT, at 7-8).

"The court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just including granting of costs and continuances" (CPLR 3025 [c]). In determining whether to conform the pleadings to the evidence, "the courts consider such factors as the delay in moving, surprise, and significant prejudice, the latter being the foremost consideration" (Rothstein v City Univ. of NY, 194 AD2d 533, 534 [2d Dept 1993]; see Murray v City of New York, 43 NY2d 400, 404-406 [1977], rearg dismissed 45 NY2d 966 [1978]). The Court of Appeals has held

"Prejudice is more than the mere exposure of the party to greater liability. Rather, there must be some indication that the party has been hindered in the preparation of the party's case or has been prevented from taking some measure in support of its position. The burden of establishing prejudice is on the party opposing the amendment"

(Kimso Apts., LLC v Gandhi, 24 NY3d 403, 411 [2014] [internal quotation marks, citations, and alterations, omitted]). Thus, "absent prejudice, courts are free to permit amendment even after trial" (id.; see Murray, 43 NY2d at 405). Further, the decision to permit the amendment of a pleading rests in the sound discretion of the Court (see Kimso, 24 NY3d at 411; see also Matter of Von Bulow, 63 NY2d 221, 224 [1984] ["(t)he lower courts have considerable latitude in exercising their discretion, which may be upset . . . only for abuse as a matter of law"]).

The Court has authority to sua sponte amend a claim to conform to the evidence presented on a motion and cross motion for summary judgment in the absence of any prejudice to the defendant (see Cave v Kollar, 2 AD3d 386, 388 [2d Dept 2003]; River Val. Assoc. v Consolidated Rail Corp., 182 AD2d 974, 976 [3d Dept 1992]; Aughtry v State of New York, UID No. 2019-029-033 [Ct Cl, Mignano, J., May 22, 2019]; cf. Broadway Warehouse Co. v Buffalo Barn Bd., LLC, 143 AD3d 1238, 1240-1241 [4th Dept 2016] [declining to amend the complaint sua sponte on the ground that the defendants would be prejudiced by the amendment, the addition of new theories of recovery]).

The Court concludes that Defendant would not be prejudiced by amending the Amended Claim sua sponte to relieve Claimant of misidentifying and/or misnaming "University Emergency Medical Services" instead of ECMC (see e.g. Perrin v McKenzie, 266 AD2d 269, 270 [2d Dept 1999]). Both parties have extensively discussed Defendant's relationship with ECMC in support of their respective applications; and Defendant has not established that Claimant's failure to name ECMC in the Amended Claim has hindered its preparation of the case or prevented it from taking some measure in support of its position (see Kimso, 24 NY3d at 411). Accordingly, the balance of Defendant's motion to dismiss is denied and, pursuant to CPLR 3025 (c), the Court sua sponte amends the Amended Claim to conform to the proof presented on the parties' motions for summary judgment by replacing references to "University Emergency Medical Services" with ECMC.

Turning to the parties' competing applications for summary judgment, it is well settled that summary judgment is "a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (St. Paul Indus. Park v New York State Urban Dev. Corp., 63 AD2d 822, 822 [4th Dept 1978] [internal quotation marks and citations omitted]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the proponent of a motion for summary judgment has established its prima facie entitlement to judgment as a matter of law, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (id.; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

"On a motion for summary judgment the burden on the court is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist" (Newton v Gross, 213 AD2d 1074, 1075 [4th Dept 1995] [internal quotation marks, alteration, and citation omitted]). Thus, "[s]ummary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" (Moyer v Roy, 152 AD3d 1188, 1189 [4th Dept 2017]; see Haas v F.F. Thompson Hosp., Inc., 86 AD3d 913, 914 [4th Dept 2011]; Luthart v Danesh, 201 AD2d 930, 930-931 [4th Dept 1994]).

It is well settled "that the State owes a duty to provide medical care and treatment to its [*5]prisoners, which duty has been defined in terms of both negligence and medical malpractice" (Kagan v State of New York, 221 AD2d 7, 16 [2d Dept 1996] [internal citations omitted]; see Lowe v State of New York, 35 AD3d 1281, 1282 [4th Dept 2006]; Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990]). "Under both theories, however, [the] claimant must establish that the negligence of the State or the State's deviation from the accepted standard of care was the proximate cause of the claimant's injuries" (Lowe, 35 AD3d at 1282; see Knight v State of New York, 127 AD3d 1435, 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 [2015]).

The distinction between a cause of action sounding in medical malpractice and one alleging medical negligence "is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two" (Martuscello v Jensen, 134 AD3d 4, 10 [3d Dept 2015] [internal quotation marks and citations omitted]; see Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996]). "The issue devolves to whether medical judgment is required or not; where the underlying claim arises from the failure to follow a medical order previously made or to apply standards of ordinary care, then it is negligence, without regard to whether expert testimony is deemed helpful to the resolution. However, where the conduct involves a standard established by means of the exercise of medical judgment, then it is malpractice" (Martuscello, 134 AD3d at 11; see Weiner, 88 NY2d at 788; Moore v St. James Health Care Ctr., LLC, 141 AD3d 701, 702-703 [2d Dept 2016]).

Claimant purports to assert causes of action grounded in both ordinary negligence and medical malpractice. As to ordinary negligence, Claimant alleges Defendant was negligent in failing to maintain its EKG machine and/or train its staff with respect to use of the machine (see Amended Claim ¶¶ 30, 47-49; Rudderow Aff ¶¶ 71-78). Courts have held that the claimed failures related to the administration of medical diagnostic testing bear a substantial relationship to the rendition of medical treatment and sound in medical malpractice (see e.g. Matter of Bates v New York City Health & Hosps. Corp., 194 AD2d 422, 423-424 [1st Dept 1993] [claim that the defendant was negligent in failing to order an MRI sounded in medical malpractice]). Similarly, allegations regarding the failure to train medical employees regarding the use of medical equipment to ensure proper diagnosis and treatment are grounded in medical malpractice (see Cullinan v Pignataro, 266 AD2d 807, 808 [4th Dept 1999]; Matter of Barresi v State of New York, 232 AD2d 962, 964 [3d Dept 1996]).

Here, the gravamen of the ordinary negligence cause of action is that Defendant failed to maintain its EKG machine and/or train its staff with respect to the use of the machine, which prevented Defendant from diagnosing and treating his heart attack when he first presented to the infirmary on February 17, 2012. The Court concludes that these allegations "bear[] a substantial relationship to the rendition of medical treatment" and are grounded in medical malpractice (Bleiler v Bodnar, 65 NY2d 65, 72 [1985]; see Serrano v State of New York, UID No. 2017-032-001 [Ct Cl, Hard, J., Feb. 27, 2017]).

Accordingly, Claimant "must demonstrate that [Defendant] deviated from acceptable medical practice, and that such deviation was a proximate cause of [his] injury" (James v Wormuth, 21 NY3d 540, 545 [2013]; see Mazella v Beals, 27 NY3d 694, 705 [2016]). "[T]o establish proximate causation, the [claimant] must demonstrate that the defendant's deviation from the standard of care was a substantial factor in bringing about the injury" (Clune v Moore, 142 AD3d 1330, 1331 [4th Dept 2016] [internal quotation marks and citation omitted]; see Wild v Catholic Health Sys., 21 NY3d 951, 954-955 [2013]). "Where, as here, the [claimant] alleges [*6]that the defendant negligently failed or delayed in diagnosing and treating a condition, a finding that the negligence was a proximate cause of an injury to the patient may be predicated on the theory that the defendant thereby diminished [the patient's] chance of a better outcome" (Clune, 142 AD3d at 1331 [internal quotation marks and citation omitted]; see Wolf v Persaud, 130 AD3d 1523, 1524-1525 [4th Dept 2015]; Goldberg v Horowitz, 73 AD3d 691, 694 [2d Dept 2010]).

The facts of this case are strikingly analogous to those presented in Serrano v State of New York (UID No. 2017-032-001). Similar to the instant case, the claimant in Serrano was an inmate who alleged that the defendant failed to timely diagnose and treat his heart attack after he presented to the infirmary with chest and shoulder pain. Judge Judith A. Hard held that "(the) defendant departed from accepted medical practice in failing to refer claimant to a physician or perform an EKG when he presented with chest and shoulder pain" (id. [emphasis added]).

Here, it is undisputed that when Claimant first presented to the infirmary with severe chest pain, Nurse Boyd took his vitals and attempted to administer an electrocardiogram (EKG) (see Nurse Boyd EBT at 46-47, 51). Additionally, it is undisputed that after Nurse Boyd determined the EKG machine was inoperable, she referred Claimant to ECMC for telemedicine services (see id. at 50). The parties agree that the telemedicine consultation was handled by PA McCaul who diagnosed Claimant with left upper extremity pain (see PA McCaul EBT at 29) and ordered that Claimant be administered Tylenol #3 and Ultram and returned to his cell (see id. at 36, 50-51, 65; Nurse Boyd EBT, at 49). The parties do not contest that Dr. Manka, the attending physician at ECMC, agreed with PA McCaul's assessment of Claimant's condition and signed the telemed form with PA McCaul's medical orders shortly after her determination was made (see PA McCaul EBT at 15-16; Manka EBT, at 57-58).

Based upon these uncontested material facts, the Court concludes, consistent with the holding in Serrano, that Nurse Boyd acted within accepted medical practice by referring Claimant to ECMC for telemedicine services after she could not get the EKG machine to work. Stated differently, notwithstanding its failure to administer an EKG to Claimant, Defendant satisfied its duty of care to Claimant by referring him to ECMC for telemedicine services, which culminated with a treatment order signed by a physician. Accordingly, the Court grants Defendant's cross motion for summary judgment insofar as dismissing so much of Claimant's first and fourth causes of action alleging that Defendant, through the conduct of DOCCS, negligently failed to perform an electrocardiogram (EKG) of Claimant; maintain, repair, or have a properly functioning EKG machine; and negligently hired, retained, and trained DOCCS' employees.

Claimant also argues in support of its motion for summary judgment that Defendant should be held vicariously liable for the any malpractice committed by ECMC as a result of Claimant's telemedicine consultation under a theory of agency or control in fact and/or apparent or ostensible agency (see Rudderow Aff ¶¶ 88-94). Defendant counters, contending that ECMC was an independent contractor whose actions cannot be attributed to the State (see Levy Aff ¶ 169-186). Accordingly, Defendant cross moves for summary judgment dismissing those portions of the Claim which seek to hold it liable for the conduct of ECMC in rendering telemedicine services.

"Traditionally, a hospital or medical facility is liable only for the medical malpractice of its employees and not that of independently contracted doctors" (Garofolo v State of New York, 135 AD3d 1108, 1109 [3d Dept 2016]). "Whether the state is vicariously liable for the medical malpractice of independent contractors in Court of Claims actions is determined by a theory of [*7]agency or control in fact, or apparent or ostensible agency" (Rothschild v Braselmann, 157 AD3d 1027, 1029 [3d Dept 2018] [internal quotation marks and citations omitted]; see Garofolo, 135 AD3d at 1109). "The issue of agency or control in fact necessarily focuses on the relationship between the doctor and DOCCS and not the relationship between the doctor and [the] claimant" (Rothschild v State of New York, UID No. 2019-044-507 [Ct Cl, Schaewe, J., Feb. 7, 2019] [internal quotation marks, alteration, and citation omitted]; see Kavanaugh v Nussbaum, 71 NY2d 535, 547 [1998]).

To support its theory of agency or control in fact, Claimant relies upon a contract between ECMC and DOCCS (the Contract) whereby ECMC agreed to provide telemedicine services (see Rudderow Aff Ex L [Contract]). Specifically, Claimant relies upon Section IX of the Contract entitled "Defense and Indemnification" that states

"Pursuant to Correction Law § 24-a and Public Officers Law § 17, the State shall defend and indemnify any person . . . who is rendering, or has rendered, professional services, . . . while acting at the request of DOC[C]S . . . in providing health care and treatment or professional consultation to inmates of State Correctional Facilities . . . without regard to whether such health care and treatment or professional consultation is provided within or without a correctional facility"

(Contract, at 12-13). Claimant reasons that because Public Officers Law § 17 only provides defense and indemnification to state employees and does not cover independent contractors, it is evident that the Contract was intended to make ECMC an agent of Defendant and/or DOCCS (see Claimant's Mem of Law, at 11-12).

It appears Claimant's interpretation ignores the other statute referenced in the Contract, Correction Law § 24-a. Indeed, the Contract specifically tracks the language of Correction Law § 24-a, which extends the defense and indemnification protections of Public Officers Law § 17 "to any person . . . who is rendering or has rendered professional services . . . while acting at the request of [DOCCS] . . . in providing health care and treatment or professional consultation to inmates of state correctional facilities." As Defendant notes, the purpose of Correction Law § 24-a is to "'extend[] the benefits of Public Officers Law § 17 to non-employee health professionals of both the Department of Correction and the Department of Mental Hygiene who render professional care at the request of those agencies'" (Colón v New York State Dept. of Corr. & Community Supervision, 2017 WL 4157372, *10, 2017 US Dist LEXIS 151035, *25 [SD NY, Sept. 15, 2017, No. 15 Civ 7432 (NSR)], quoting 1980 Ops Atty Gen 40 [emphasis added]). Consequently, the Court concludes that the Claimant has failed to meet its prima facie burden of establishing that Defendant shall be vicariously liable for the acts of ECMC under the theory of agency or control in fact.

Conversely, Defendant has established its entitlement to judgment as a matter of law dismissing so much of Claimant's first, second, third, fourth, and eighth causes of action to the extent Claimant seeks to hold Defendant liable for the acts of ECMC under the theory of agency or control in fact. Specifically, Dr. Paula R. Bozer, the Wende Regional Medical Director for DOCCS and "liaison between ECMC's Telemed Emergency Services and DOCCS" affirmed "[n]either ECMC, nor the medical staff which ECMC employs to provide services pursuant to [the Contract] with DOCCS, are now, or were in 2012, employees of the State of New York or DOCCS" (Affidavit of Paula R. Bozer, sworn to on July 16, 2020 ¶¶ 2, 3, 8). Moreover, Dr. Bozer clarified that "DOCCS had no input under the [C]ontract into whom ECMC employed to [*8]provide the various services pursuant to [the Contract] with DOCCS, nor did DOCCS have any supervisory authority over said employees of ECMC" (id. ¶ 8). The primary care physician at the correctional facility has authority to review and overrule the treatment recommendations of ECMC staff (see id.).

Similarly, both Dr. Manka and PA McCaul testified at their depositions that they were employees of University Emergency Medical Services who provide emergency services to ECMC and are not employees of DOCCS (see Dr. Manka EBT at 4, 17-18; PA McCaul EBT at 12). Further, in pleadings in a related Supreme Court matter, Dr. Manka denied that he was an employee or agent of DOCCS (see Levy Aff Ex 10 [Supreme Court Complaint] ¶¶ 6-7; id. Ex 11 [Supreme Court answer] ¶¶ 1, 4). The evidence presented by Defendant establishes that ECMC was not an employee or agent of DOCCS. In opposition, Claimant fails to raise a triable issue of fact with respect to the theory of agency or control in fact. Consequently, Defendant is entitled to partial summary judgment dismissing so much of Claimant's first, second, third, fourth, and eighth causes of action to the extent Claimant seeks to hold Defendant liable for the acts of ECMC under the theory of agency or control in fact.

With respect to ostensible or apparent agency, such doctrine "imposes vicarious liability upon [the] defendant for the alleged malpractice of an independently contracted doctor when an inmate has reasonably relied upon the appearance of the doctor's authority created by the words or conduct of DOCCS" (Garofolo, 135 AD3d at 1109; see Hill v St. Clare's Hosp., 67 NY2d 72, 79-82 [1986]). "The applicability of the doctrine depends upon whether the [claimant] could have reasonably believed, based upon all of the surrounding circumstances, that the treating physician was provided by the defendant . . . or was otherwise acting on the defendant's behalf" (Soltis v State of New York, 172 AD2d 919, 920 [3d Dept 1991]). Courts will evaluate "words or conduct on the part of DOCCS that give rise to the appearance and belief that the doctors were acting on its behalf and reliance on that apparent authority" (Garofolo, 135 AD3d at 1110 [internal citations omitted]).

The determination of ostensible or apparent authority has been decided within the Court of Claims based upon the location of the treatment provided (see e.g. Moon v County of Erie, UID No. 2002-031-038 [Ct Cl, Minarik, J., Sept. 5, 2002]; Williams v State of New York, UID No. 2002-013-504 [Ct Cl, Patti, J., Feb. 7, 2002]), or as a question of fact dependent on all the surrounding circumstances (see Rothschild v State of New York, UID No. 2019-044-507; Funaro v State of New York, UID No. 2001-028-539 [Ct Cl, Sise, J., June 22, 2001]).

The Court concludes there are material issues of fact with respect to ostensible agency that precludes summary judgment for either party. Initially, the Court notes medical care utilizing telemedicine presents a unique question of where treatment was rendered. On one hand, Claimant remained at Auburn Correctional Facility and was treated at the facility in accordance with the telemedicine recommendation provided by ECMC (see e.g. Soltis, 172 AD2d at 920). On the other hand, ECMC staff rendered its services and treatment recommendations off-site (see e.g. Triftshauser v State of New York, UID No. 2006-031-050 [Ct Cl, Minarik, J. [Ct Cl, July 20, 2006], affd 45 AD3d 1354 [4th Dept 2007]).

Additionally, Claimant's deposition testimony was equivocal as to his understanding of the relationship between DOCCS and ECMC. In particular, Claimant testified Nurse Boyd "put [him] on a TeleMed interview with an outside doctor" (Claimant's First EBT at 59 [emphasis added]). It is unclear from the evidence presented what Claimant meant by "outside doctor." Claimant could have been referring to the actual location of the doctor (i.e. outside the facility). [*9]On the contrary, Claimant could have been referring to the affiliation of the doctor as it relates to DOCCS (i.e. an independent doctor unaffiliated with DOCCS). Claimant's prior telemedicine consultations do not clarify Claimant's deposition testimony; rather, the prior consultations may inform the reasonableness of Claimant's belief as to the relationship between ECMC and DOCCS. Given these outstanding issues of material fact relating to the theory of ostensible agency, both parties' motions for summary judgment with regard to this theory of liability are denied.

Assuming Defendant can be held liable for the conduct of ECMC, there are material questions of fact as to whether ECMC deviated from the acceptable standard of medical care in rendering telemedicine services to Claimant. Claimant's expert, Dr. Bruce Charash, and Defendant's expert, Dr. Jerel Mark Zoltick, provided conflicting expert opinions as to whether the performance of an EKG was necessary under the circumstances, whether the performance of an EKG would have revealed that Claimant was suffering a heart attack when he first presented to the infirmary, and whether the failure to perform an EKG was the proximate cause of Claimant's injuries. Dr. Charash opined that given Claimant's symptoms of chest pain, left upper extremity and neck pain, and shortness of breath, he should have either received an EKG to rule out a heart attack or been immediately transferred to a location where such testing or further emergency medical diagnosis and treatment could have been performed (see Affirmation of Bruce Charash, MD, dated May 22, 2020 ¶¶ 9, 12). Dr. Charash reasons that Defendant and, by extension, ECMC, deviated from the accepted standards of medical practice in failing to take either step (see id. ¶ 14).

Conversely, Dr. Zoltick affirmed "[t]he determination, by PA McCaul and Dr. Manka to prescribe Tylenol # 3 for [Claimant] to see if his pain resolved, rather than immediately refer him to an outside facility for evaluation, was within the providers' professional judgment and did not deviate from the acceptable standard of care given [Claimant's] past chronic pain syndrome and his diagnosis of thoracic outlet syndrome" (Affirmation of Jerel Mark Zoltick, MD, FACC, dated August 20, 2020 ¶ 20). These competing expert opinions present a credibility issue that must be resolved at trial (see Moyer, 152 AD3d at 1188-1189).

There are also material issues of fact surrounding the alleged exacerbation of Claimant's injuries during the hours between his first and second infirmary visits on February 17, 2012. In particular, Dr. Charash opined "[t]his gap in time before treatment permitted the Claimant to suffer with excruciating pain and, ultimately, caused severe and irreversible damage to his heart tissue" (Affirmation of Bruce Charash, MD, dated May 22, 2020 ¶ 20). Conversely, Dr. Zoltick affirmed an EKG only became necessary when Claimant returned to the infirmary after experiencing hours of chest pain and Defendant satisfied the applicable standard of care by administering the EKG at that time (see Affirmation of Jerel Mark Zoltick, MD, FACC, dated August 20, 2020 ¶ 21). These competing expert opinions present a credibility issue that must be resolved at trial (see Moyer, 152 AD3d at 1188-1189).

Additionally, assuming the delay between Claimant's infirmary visits exacerbated his condition, there is a material issue of fact surrounding Claimant's comparative negligence. Claimant testified at his deposition that he asked a correction officer, who he believed to be Correction Officer Waterman, to return to the infirmary at approximately 5:00 p.m. and again at 7:00 p.m., but was not returned to the infirmary until 11:00 p.m. (see Claimant's First EBT, at 69-73; Levy Aff, Ex 14 [Claimant's Second EBT], at 59-62). However, Correction Officer Waterman testified at his deposition that he only spoke with Claimant at 10:00 p.m. while [*10]conducting his cell count, when he noticed Claimant "was on his bars all sweaty, pale and . . . obviously sick" (Waterman EBT, at 16; see id. 29). Consequently, there is conflicting testimony from Claimant and Correction Officer Waterman with respect to when, if at all, Claimant sought to return to the infirmary, which must be resolved at trial.

Similarly, material issues of fact permeate Claimant's causes of action premised on Defendant's alleged failure to promptly provide a stent and defibrillator implant to Claimant, provide continuing ICD scans every 90 days, and ensure the battery level in Claimant's defibrillator did reach dangerously low levels (see e.g. Amended Claim ¶¶ 70-71). In support of Claimant's motion for summary judgment, Dr. Charash opined that when Defendant learned that Claimant's ejection fraction was 25% by an echocardiogram dated February 25, 2012, Claimant should have been implanted with a defibrillator (see Affirmation of Bruce Charash, MD, dated May 22, 2020 ¶¶ 21-22). Dr. Charash also affirmed that testing the defibrillator and monitoring its battery is critical to Claimant's health and Defendant's alleged failure to monitor the defibrillator and battery "shows its complete and utter disregard for its duty to . . . Claimant and his life" (id. ¶ 25).

Dr. Zoltick countered, affirming that, according to the American College of Cardiology, "an ICD was not indicated immediately after a heart attack unless there was unstable arrhythmia or cardiac arrest, which [Claimant] did not have" (Affirmation of Jerel Mark Zoltick, MD, FACC, dated August 20, 2020 ¶ 26). Moreover, Dr. Zoltick opined that an ejection fraction of less than 35% did not mandate placement of an ICD for 40 days because a patient's ejection fraction could improve (see id.). Dr. Zoltick notes that Claimant's ejection fraction did in fact improve and Claimant did not meet the criteria for an ICD until January 17, 2014 when he complained of chest pains and had an ejection fraction of 30% (see id. ¶¶ 26, 29; Levy Aff, Ex 38). Dr. Zoltick affirms that the placement of an ICD in Claimant in April 2014 was within the acceptable standard of care (see Affirmation of Jerel Mark Zoltick, MD, FACC, dated August 20, 2020 ¶ 29). Dr. Zoltick also opined "[t]here was no need to consider the replacement of the generator battery before October 31, 2019" because the generator battery lasts roughly six to nine months (id. ¶ 30). Moreover, Dr. Zoltick affirmed the battery would sound a beep, indicating it needed to be replaced, prior to stopping (see id.).

In an affirmation in reply, Dr. Charash states that an ICD generator battery should be replaced when the battery strength falls to 10% (see Affirmation of Bruce Charash, MD, dated October 2, 2020 ¶ 27). Dr. Charash reasons that because Claimant's ICD battery was at 6% of its original charge, Defendant deviated from the acceptable standard of care in failing to promptly replace it (see id.). Dr. Charash also opined that "[w]aiting for the battery to be drained to near zero, and allowing the battery to beep continuously, exposes [Claimant] to an unreasonable risk of sudden death" (id.). These competing expert opinions present a credibility issue that must be resolved at trial (see Moyer, 152 AD3d at 1188-1189). Accordingly, both parties' motions for summary judgment with respect to the placement of the stent and ICD and subsequent monitoring of the ICD is denied.

Claimant alternatively requests an order dismissing Defendant's second and third affirmative defenses. Pursuant to CPLR 3211 (b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." Claimant "bears the burden of demonstrating that the affirmative defense is without merit as a matter of law" (Bank of NY v Penalver, 125 AD3d 796, 797 [2d Dept 2015] [internal quotation marks and citation omitted]). "When reviewing a motion to dismiss an affirmative defense, all of [the] [*11]defendant's allegations must be deemed to be true and [the] defendant is entitled to all reasonable inferences to be drawn from the submitted proof" (Stopani v Allegany Co-op Ins. Co., 83 AD3d 1446, 1446-1447 [4th Dept 2011] [internal quotation marks and citation omitted]). "If there is any doubt as to the availability of a defense, it should not be dismissed" (Nahrebeski v Molnar, 286 AD2d 891, 891 [4th Dept 2001] [internal quotation marks and citation omitted]). Stated differently, where there are issues of fact surrounding the applicability of the defense, a motion to dismiss the defense should be denied (see 534 E. 11th St. Hous. Dev. Fund Corp. v Hendrick, 90 AD3d 541, 542 [1st Dept 2011]).

The second affirmative defense alleges that Defendant is immune from liability for its discretionary decisions, including decisions regarding medical treatment of Claimant (see Rudderow Aff, Ex D [Defendant's Verified Answer to Amended Claim] ¶ 6). Courts have held that the State is not entitled to immunity for claims of improper medical care and treatment made by inmates (see e.g. Carlson v State of New York, 34 Misc 3d 242, 253 [Ct Cl 2011]; see also Kagan, 221 AD2d at 11). Accordingly, Claimant's motion to dismiss Defendant's second affirmative defense is granted only insofar as the defense alleges that Defendant is immune for liability for decisions regarding the medical care and treatment of Claimant.

The balance of Claimant's motion to dismiss Defendant's second affirmative defense must be denied. As Defendant notes (see Levy Aff ¶ 243), the Amended Claim includes various allegations implicating DOCCS' discretionary decisions regarding safety, security, and control of its correctional facilities (see Amended Claim ¶¶ 30, 50-53, 71). "The discretionary determinations of correction officials in fulfilling their responsibility for the safety, security and control of correctional facilities has been recognized as quasi-judicial in nature, and subject to absolute immunity where conducted in compliance with governing statutes and regulations" (Carlson, 34 Misc 3d at 251; see also Arteaga v State of New York, 72 NY2d 212, 218-219 [1988] ["(b)ecause of the problems of maintaining security and discipline within correctional facilities, the discretion delegated to the employees and officers is necessarily comprehensive and calls for the exercise of judgment under widely varying conditions"]). Consequently, the Court concludes that so much of the second affirmative defense directed at Claimant's allegations regarding Defendant's discretionary determinations regarding safety, security, and control of its correctional facilities should not be dismissed.

With regard to its third affirmative defense, Defendant alleges that Claimant's injuries stem from "conduct by Claimant or others who were not under the Defendant's control" (Defendant's Verified Answer to Amended Claim ¶ 7 [emphasis added]). Claimant argues that Defendant's failure to particularize the "others" responsible for Claimant's injuries warrants dismissal of the defense (see Rudderow Aff ¶¶ 99-100). As Defendant notes, Claimant did not specifically request Defendant particularize the "others" it was referencing in its third affirmative defense (see Levy Aff ¶¶ 230-235 & Ex 41 [Claimant's Demand for Bill of Particulars] ¶ 3). Additionally, Claimant never objected to Defendant's bill of particulars or supplemented his demand. In any event, the parties appear to have distilled the reference to "others" in Defendant's third affirmative defense to refer to ECMC. As stated above, there is a material issue of fact as to whether Defendant can be held liable for the acts of ECMC. Accordingly, Defendant's third affirmative defense is not lacking in merit as a matter of law and the motion to dismiss such defense must be denied.

Lastly, because Claimant does not oppose Defendant's motion in limine, the Court grants the motion and permits Defendant to introduce prison, mental health, and medical records [*12]involving Claimant's treatment after July 7, 2020 and allows Defendant's experts to rely on same in preparing their reports and testifying at trial.

Accordingly, it is hereby:

ORDERED Claimant's motion No. M-95437 is granted only insofar as dismissing so much of Defendant's second affirmative defense as alleges that Defendant is immune for liability for decisions regarding the medical care and treatment of Claimant; and it is further

ORDERED Claimant's motion No. M-95437 is otherwise denied; and it is further;

ORDERED Defendant's cross motion CM-95852 to dismiss Claimant's sixth, seventh, and ninth causes of action is granted; and it is further

ORDERED Defendant's cross motion for summary judgment is granted insofar as dismissing so much of Claimant's first and fourth causes of action alleging that Defendant, through the conduct of the Department of Corrections and Community Supervision (DOCCS), negligently failed to perform an electrocardiogram (EKG) of Claimant; maintain, repair, or have a properly functioning EKG machine; and negligently hired, retained, and trained DOCCS' employees; and it is further

ORDERED Defendant's cross motion CM-95852 for summary judgment is granted insofar as dismissing so much of Claimant's first, second, third, fourth, and eighth causes of action to the extent Claimant seeks to hold Defendant liable for the acts of ECMC under the theory of agency or control in fact; and it is further

ORDERED Defendant's cross motion for summary judgment and dismissal is otherwise denied; and it is further

ORDERED pursuant to CPLR 3025 (c), the Amended Claim is amended sua sponte to conform to the proof presented on the parties' motions for summary judgment by replacing references to "University Emergency Medical Services" with Erie County Medical Center (ECMC); and it is further

ORDERED Defendant's motion in limine (M-95853) is granted and Defendant is permitted to offer prison, mental health, and medical records involving Claimant's treatment after July 7, 2020 as evidence at trial and Defendant's experts may rely on same in preparing their reports and testifying at trial.

Albany, New York

December 4, 2020

CATHERINE E. LEAHY-SCOTT

Judge of the Court of Claims

The Court considered the following in deciding these motions:

(1) Notice of Motion, dated May 27, 2020.

(2) Affirmation of Michelle Rudderow, Esq., dated May 22, 2020, with attachments.

(3) Affirmation of Bruce Charash, MD, dated May 22, 2020, with attachments.

(4) Claimant's Memorandum of Law, dated May 27, 2020.

(5) Notice of Cross Motion, dated August 24, 2020.

(6) Affirmation of Bonnie Gail Levy, Esq., dated August 24, 2020, with attachments.

(7) Affirmation of Jerel Mark Zoltick, MD, FACC, dated August 20, 2020, with attachment.

(8) Affidavit of Paula R. Bozer, sworn to on July 16, 2020.

(9) Defendant's Memorandum of Law, dated August 24, 2020.

(10) Affirmation of S. Robert Williams, Esq., and Michael R. O'Neill, dated September 30, 2020, with attachments.

(11) Affirmation of Bruce Charash, MD, dated October 2, 2020. Footnotes

Footnote 1: The Court notes Claimant improperly utilized letters, rather than numbers, in labeling the exhibits in support of the motion for summary judgment. However, given that Defendant utilized numbers in labeling its exhibits and to avoid confusion, the Court refers to the exhibits as labeled by the parties.

Footnote 2: Claimant only submitted relevant portions of deposition testimony in support of his motion whereas Defendant submitted entire deposition transcripts. For convenience, the Court will cite to the full transcript provided by Defendant.