Decision The following papers numbered 1-3 were read and considered by the Court on the State’s Motion for Summary Judgment: Notice of Motion State’s Attorney’s Supporting Affirmation, Exhibits and Memorandum of Law 1 Attorney’s Affirmation in Opposition, and Exhibits 2 State’s Attorney’s Affirmation in Reply 3 DECISION AND ORDER The instant claim arises from the State’s alleged cancellation of claimant’s scheduled encephalocele1 resection surgery on June 29, 2015, claimant’s involuntary discharge from Elmhurst Hospital Center (Elmhurst), and a delay in rescheduling claimant’s surgery until August 11, 2015.2 By Decision and Order filed on January 30, 2019, the Court (Mignano, J.) dismissed five of the claim’s six causes of action for lack of jurisdiction.3 The single remaining cause of action against the State is for negligence. The State now moves for summary judgment as to liability. Claimant opposes the motion. The State’s motion is supported by an attorney’s affirmation and copies of: the pleadings (Exs. A-D); transcripts of depositions of claimant (Ex. E), Roy Snyder, Deputy Superintendent of Security for Bedford Hills Correctional Facility (Bedford) (Ex. F) and Brooke Blaise, Assistant Director of Health Services for the Department of Corrections and Community Supervision (DOCCS) (Ex. G); Progress Notes (Exs. E-1, E-2); Watch Commander’s Logbook (Ex. F-1); Email correspondence (Ex. G-1); Note of Issue (Ex. H); claimant’s medical charts from DOCCS (Ex. I), Elmhurst (Ex. J) and Westchester Medical Center (Ex. L); and DOCCS Policies and Procedures for the Operation of Outside Hospital Detail (Ex. K). Summary of the Evidence The State did not submit an affidavit by someone with knowledge of the facts as required by CPLR 3213 (b), and claimant did not address this issue in her opposition to the motion. The State’s motion is nonetheless supported by the transcripts of three depositions, which constitute “other available proof” (CPLR 3212 [b]). Although the transcript of Roy Snyder’s deposition is unsigned, the State represents that Snyder was sent a copy of the transcript (State’s Post-Trial Memorandum, p 2, n 1). Claimant’s deposition transcript is also unsigned, but the transcript is certified. Under the circumstances, the Court considers the aforesaid deposition transcripts to be admissible evidence (see CPLR 3116 [a] [deposition may be used where it was sent to witness who then fails to sign it]; Luna v. CEC Entertainment, Inc., 159 AD3d 445, 446 [1st Dept 2018] [unsigned but certified deposition transcript of party opponent may be used as admission]). The medical records and the deposition testimony of claimant show the following facts. While claimant was incarcerated at Rikers Island Correctional Facility (Rikers), she had “severe headaches,” two broken feet and a staph infection called “MSRA” (Ex. E [claimant's depo]: 19; Ex. J [Elmhurst Hospital chart], pp 25, 29).4 Spinal fluid was leaking from her nose (Ex. J, pp 41, 77; Ex. E: 30-31). Claimant also suffered from Crohn’s Disease, Rheumatoid Arthritis and Fibromyalgia, and she was morbidly obese (Ex. J , pp 25, 29). She saw an ENT5 doctor at Elmhurst because of the headaches (Ex. E-2). She had a CT scan on June 22, 2015 (Ex. J at p. 106). The doctor told her that she had an encephalocele, which claimant understood to be a condition in which the brain is protruding outside of the skull (Ex. E: 30). The doctor also told her that it was an urgent situation and she would have a 30 percent chance of surviving the surgery (Ex. E: 34-34, 39). Encephalocele resection surgery was scheduled at Elmhurst for June 29, 2015 (Ex. E-2 [progress note]). Claimant was transferred to Bedford on June 24, 2015, five days before her scheduled surgery. Notes in claimant’s certified DOCCS medical chart indicate that on June 26, 2015, an ENT doctor named Dr. Tong called Bedford to inquire about claimant’s upcoming surgery at Elmhurst, stating that the surgery was a “life-saving procedure,” and that Dr. Tong would perform “pre-op” on claimant after her admission on June 28, 2015 (Ex. I [DOCCS chart], p 22). It was also noted in the chart that “Albany approval” would be sought (id.). Claimant was admitted to Elmhurst on June 28, 2015. A nurse’s note from June 29, 2015, the day of the scheduled surgery, states that “patient has right foot brace due to fracture, denies pain able to ambulate short distances by slf. […] patient on contact precaution due to MRSA,6 isolation maintained in private room, officers asked to wear PPE for protection” (Ex. J, p 96). Claimant testified that she was brought to a pre-op area at Elmhurst, where the ENT doctor she had previously seen spoke with her. While claimant waited on a gurney in the hallway, her doctor explained to the correction officers (COs) accompanying claimant that they could not come into the operating room (OR) due to claimant’s medical condition. Claimant recalled the doctor saying that because of her MRSA and “immunosuppression,” they “needed to do the surgery in a triple sterile OR room and that no one that was non-medical was going to be allowed in the room for my own safekeeping and sterility” (Ex. E: 71-72). One of the COs said it was Bedford policy for a CO to remain in the OR during the surgery (Ex. E: 74-76). Claimant would not have minded having an officer in the OR as long as the officer’s presence did not make the OR less sterile (Ex. E: 77). A progress note in claimant’s chart signed by a Dr. Wang provides, in pertinent part: “Patient unable to have surgery done today because OR staff notified by COs of Bedford that patient must be accompanied by COs throughout the course of surgery. Elmhurst policy prohibits non-medical staff from being present in the OR. A compromise was suggested whereby the COs could remain in the OR until general anesthesia is induced and stay just outside the OR until patient is ready to be extubated. The Lieutenant at Bedford declined and stated that the COs had to be in the OR. After conferring [] risk management and asking the patient her comfort level [] having COs in her case, which she is not, the decision was made to reschedule the case […].” (Ex. J, p 106). Brooke Blaise, the Assistant Director of Health Services at DOCCS, testified at her deposition that Elmhurst was not one of their “contracted hospitals” (Ex. G, p 38). Asst. Dir. Blaise received an email from Dr. Bailey-Wallace, the Regional Medical Director in the Central Office of DOCCS, on the day of claimant’s scheduled surgery (Ex. G, p 29). The email states in pertinent part: “I spoke with Dr. Wang of Elmhurst Hospital. She reports the procedure should be done “sooner rather than later.” They are comfortable with the officers being in the ante area — not really a room — just outside of the OR. They would require the handcuffs be removed once the pt is under general anesthesia as they do not want to be liable in case she falls off the bed. They however cannot have the officers inside the OR. Meanwhile they can reschedule her for admission 7/12/15 for surgery 7/13/15″ (Ex. G-1). Asst. Dir. Blaise forwarded the email to Margaret Franklin, the Director of Nursing, Captain Paul Artuz and Deputy Superintendent of Security Roy Snyder to let them know “that this surgery did not have to happen on that particular day, that we could schedule it within the next, I guess, week or two, right? And that way we would have a little bit more time to figure out the security component of that particular OR” (Ex. G, pp 38-39). Claimant was discharged from Elmhurst and returned to Bedford (Ex. J. p 69). A month later on July 28, 2015, an ENT doctor at Westchester Medical Center (WMC) examined claimant and scheduled her for “elective” surgery (Ex. I, p 111).7 WMC was one of Bedford’s contracted hospital facilities (Ex. G [Blaise depo.], p 42). The ENT doctor at WMC who evaluated claimant wrote in a progress note that “prior surgery planned a[t] elmhurst but cancelled due to security reason” (Ex. I, p 110). The surgery was rescheduled for August 11, 2015. Claimant testified that before the rescheduled surgery she started to experience hearing loss in one ear and vision problems from a build-up of cerebral spinal fluid (Ex. E: 49-50). She continued to receive mental health treatment for the stress and feeling of doom she started experiencing after her initial diagnosis (Ex. E: 102-103). Nurses told her that WMC was cleaner and had higher standards than Elmhurst, so the risk of contracting MRSA or a staph infection were lower (id.: 91-97). On August 11, 2015, claimant was transported from Bedford to WMC, where pre-operative notes dictated by one of the attending surgeons provide, inter alia, “I had a long discussion with the patient regarding the risks, benefits and alternatives of the above-listed elective procedures […]. She demonstrated a clear understanding of all the risks” (Ex. L, p 139). The discharge summary contains a history of claimant’s illness in which the author of the summary refers to a discussion he had with claimant prior to the surgery: “We discussed the management options going forward, including but not limited to observation, continued medical management, and surgical management. The patient wished to proceed with surgery” (Ex. L, p 24). The second page of the three-page discharge summary contains a description of the surgery and post-operative recovery period that was dictated by Dr. Jeffrey Cranford, who identifies the doctors accompanying claimant to the operating room as ENT Drs. Jourdy and Kamat and neurosurgeon Dr. Murali. The three-page summary was signed electronically by Dr. Jourdy (Ex. L, pp 23-25). A CO was present in the OR during the surgery (id. at 149). Claimant testified that the discharge of spinal fluid from her nose, the vision and hearing loss and the swelling behind her ear abated right after the surgery. The headaches continued but became less severe over time (Ex. E: 42-43, 50-51). Dep. Supt. Snyder testified at his deposition about the policies and procedures that apply when incarcerated individuals are sent to outside medical facilities. COs accompany them to ensure the continued custody of the incarcerated individual. DOCCS will do a site visit at the medical facility to check security (Ex. F, pp 8-15). He was not familiar with how Elmhurst handles incarcerated individuals (id. at 45). DOCCS policy requires that COs maintain visual contact with the incarcerated individual and to cover all entrances (id. at 37-38). Not having COs in the OR with claimant prevented them from maintaining a constant visual of her. He believed there were two or three entrances to the OR and two COs could not cover all of the entrances. In his experience, COs are permitted to remain in the OR (id. at 37-39). If claimant’s surgery had gone forward on June 28, 2015, Dep. Sup. Snyder would have needed to remove COs from Bedford and send them to Elmhurst in order to cover all the entrances. Analysis “[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 eliminate any material issues of fact from the case” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see CPLR 3212 [b]; Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “Failure to make such [a] prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers” (Alvarez, 68 NY2d at 324; see Winegrad, 64 NY2d at 853). Once this burden has been met, the party opposing such a motion must “show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]) “by producing evidentiary proof in admissible form” (Zuckerman, 49 NY2d at 562). A motion for summary judgment “shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts [and] it shall recite all the material facts” (CPLR 3212 [b]; see S. J. Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d 338, 341 [1974]). “[A]ll of the evidence must be viewed in the light most favorable to the party opposing the motion, and all reasonable inferences must be resolved in that party’s favor” (Udoh v. Inwood Gardens, Inc., 70 AD3d 563, 565 [1st Dept 2010]). In deciding a summary judgment motion, a court “may not pass on issues of credibility” (Rizzo v. Lincoln Diner Corp., 215 AD2d 546, 546 [2d Dept 1995]; see Vega v. Restani Constr. Corp., 18 NY3d 499, 505 [2012]). ” ‘[W]here credibility determinations are required, summary judgment must be denied’ ” (Bank of N.Y. Mellon v. Gordon, 171 AD3d 197, 201 [2d Dept 2019], quoting People v. Greenberg, 95 AD3d 474, 483 [1st Dept 2012], affirmed 21 NY3d 439 [2013]). Summary judgment is “rarely granted in negligence cases since the very question of whether a defendant’s conduct amounts to negligence is inherently a question for the trier of fact in all but the most egregious instances” (Johannsdottir v. Kohn, 90 AD2d 842, 842 [2d Dept 1982]; see Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). The elements of negligence are “(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom” (Abbott v. Johnson, 152 AD3d 730, 732 [2d Dept 2017], lv denied 31 NY3d 1041 [2018]). It is well settled that the State has a duty to provide reasonable and adequate medical care to its incarcerated individuals (see Mullally v. State of New York, 289 AD2d 308, 308 [2d Dept 2001]). Further, the State has a duty to render adequate medical services to incarcerated individuals without undue delay (see Colon v. State of New York, UID No. 2020-029-010 [Ct Cl, Mignano, J., 2020]). Whenever ” ‘delays in diagnosis and/or treatment [are] a proximate or aggravating cause of [a] claimed injury,’ the State may be liable” (Kagan v. State of New York, 221 AD2d 7, 11 [2d Dept 1996], quoting Marchione v. State of New York, 194 AD2d 851, 855 [3d Dept 1993]). In support of the motion, the State argues that claimant caused the delay by withholding her consent to having a CO in the operating room. The basis for the State’s argument is a note by Dr. Wang, the doctor at Elmhurst communicating with DOCCS. In her note (Ex. J, p 106), Dr. Wang states that she asked claimant her comfort level in having a CO in the OR and claimant indicated she was not comfortable. However, as claimant argues in opposition, Dr. Wang’s note does not establish that claimant withheld her consent. Construing the note in claimant’s favor, as the Court must do in deciding a summary judgment motion, the reasonable inference is that the doctor simply asked for her patient’s input while the hospital was engaged in discussions with DOCCS. The evidence submitted by the State shows unequivocally that, but for Bedford’s initial refusal to let the surgery take place as planned unless there was a CO present in the OR, claimant’s surgery would have been performed as scheduled on June 28, 2015. Whether the State’s insistence on having a CO in the OR was reasonable does not rise or fall on claimant’s consent.8 In that regard, the State has not shown that Elmhurst would have allowed the surgery to go forward with a CO in the OR if claimant had instead indicated that she was comfortable with such an arrangement. Rather, claimant’s testimony as to what she understood was Elmhurst’s reasons for excluding a CO from the OR raises issues of fact that are material to the instant case. Claimant testified she was told that having non-medical personnel in the OR could endanger her health, which is material to the issue whether the State acted reasonably, and could explain claimant’s discomfort. Whether it was reasonable to insist that a CO be present in the OR during claimant’s surgery cannot be resolved based solely on the State’s evidence. The State also argues that the delay in claimant’s surgery was reasonable because: DOCCS was following Correction Law §23 (2) and DOCCS policy by insisting that a CO be present in the OR; Dr. Wang told DOCCS the surgery was not urgent; and the delay did not affect the outcome of the surgery. Claimant argues in opposition that there is a question of material fact as to the reason why the surgery was delayed until August 11, 2015. Neither Correction Law §23 (2) nor DOCCS Directive No. 4904 explicitly requires that a CO be present in the OR. Correction Law §23 (2) provides, in relevant part, that incarcerated individuals being treated in outside hospitals “shall remain under the jurisdiction and in the custody of the department while in said hospital.” Directive No. 4904 (g) also provides that officers maintain custody of incarcerated individuals in outside hospitals, and that officers: “7. Post themselves in a position that permits an unobstructed view of the incarcerated person [sic]; […and] 9. Not allow incarcerated person [sic] to pass from view unless incarcerated person [sic] passes to the supervision of another Correction Officer” (Ex. K).9 The statute and the directive do not define “custody.” To the extent they require officers to keep an incarcerated individual in sight, it appears from the evidence that posting officers outside instead of inside the OR was a plausible solution to the impasse, a solution that did not come to fruition because the surgery was postponed. The State argues that regardless of DOCCS’ initial position, the surgery would have gone forward if Dr. Wang had said it was urgently needed and could not be delayed. However, the need and urgency of the surgery is in dispute, as well as the reason for a further delay until August 11, 2015. Claimant testified that she was told by the ENT doctor she saw at Elmhurst that her condition was life threatening and urgent, which is corroborated by a note in her DOCCS chart that a Dr. Tong called Bedford about claimant’s upcoming surgery for her “life threatening” condition. However, Dr. Wang indicated that a brief delay would be alright, and the WMC records contain notes referring to the surgery as elective, which does not comport with a life threatening condition. This contradiction raises an issue of fact that the Court cannot determine on summary judgment (see Bank of N.Y. Mellon, 171 AD3d at 201). The aforementioned disputed issues of material fact compel the Court to deny the State’s motion for summary judgment. In addition, the Court observes that issues not within the ordinary experience of a lay person require submission of an expert affidavit to support a summary judgment motion (see Tatta v. State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005], quoting Wells v. State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see Adeleke v. County of Suffolk, 156 AD3d 748, 749 [2d Dept 2017]; Young v. State of New York, UID No. 2019-038-110 [Ct Cl, DeBow, J., Aug. 19, 2019]). The State did not submit an expert affidavit and the parties did not raise the issue in their papers. Even so, to the extent the issues to be determined at trial are not within the ordinary experience of a lay person, expert testimony will be required. In sum, the State has not met its burden to “make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad, 64 NY2d at 853). Accordingly, the State’s motion for summary judgment is DENIED. A trial on the issue of liability only will be scheduled as soon as practicable. Dated: January 31, 2022
