Opinion
# 2012-048-510 Claim No. 110706, 111519, 111759
06-29-2012
INJAH TAFARI v. THE STATE OF NEW YORK
Synopsis
In three separate actions, each alleging the intentional torts of battery and, in one action, also seeking damages for Defendant's alleged failure to provide Claimant with timely medical care while an inmate at Eastern Correctional Facility, the Court dismissed the causes of action for battery, but found that Defendant failed to timely schedule Claimant for left shoulder surgery and awarded him $2,400.00 for his past pain and suffering. Case information
UID: 2012-048-510 Claimant(s): INJAH TAFARI Claimant short name: TAFARI Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 110706, 111519, 111759 Motion number(s): Cross-motion number(s): Judge: GLEN T. BRUENING Claimant's attorney: INJAH TAFARI, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Joan Matalavage, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: June 29, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, Injah Tafari, commenced three separate actions seeking to recover damages for personal injuries allegedly caused by correction officers in three separate incidents while he was incarcerated at Eastern Correctional Facility ("Eastern") operated by the Department of Correctional Services ("DOCS")in Napanoch, New York. Claim No. 110706 alleges the intentional tort of assault and battery on March 18, 2005 and resulting injuries to his left shoulder. Claim No. 111519 alleges the intentional tort of assault and battery on October 10, 2005, and resulting injuries to his left shoulder, and negligence in providing timely medical care. Claim No. 111759 alleges the intentional tort of assault and battery on November 15, 2005 and resulting injuries to his arm and hand. A trial of the three claims was held on April 27, 2012 by video conference. Because Claimant's medical records during the relevant time period for all the claims are voluminous and duplicative, at trial the parties agreed that the Court would first hear the liability portions of the three intentional torts sequentially, and thereafter hear the damages portion of the claims combined with the negligent care allegations. This decision covers all three separately filed claims.
DOCS is now known as the Department of Corrections and Community Supervision (see L. 2011, c. 62, § 4, eff. March 31, 2011). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
Assault and Battery
The elements of the intentional tort of assault and the intentional tort of battery, while similar, are not the same. To sustain a cause of action to recover damages for assault, while physical injury need not be present (see Hassan v Marriott Corp., 243 AD2d 406, 407 [1st Dept 1997]; Reichle v Mayeri, 110 AD2d 694, 694 [2d Dept 1985]), "there must be proof of physical conduct placing the [Claimant] in imminent apprehension of harmful contact" (Marilyn S. v Independent Group Home Living Program, Inc., 73 AD3d 895, 897 [2d Dept 2010] [internal quotation marks and citations omitted]; see Guntlow v Barbera, 76 AD3d 760, 766 [3d Dept 2010], appeal dismissed 15 NY3d 906 [2010]).
"The elements of a cause of action for battery are bodily contact, made with intent, and offensive in nature" (Zgraggen v Wilsey, 200 AD2d 818, 819 [3d Dept 1994]). "An action for battery may be sustained without a showing that the actor intended to cause injury as a result of the intended contact, but it is necessary to show that the intended contact was itself 'offensive', i.e., wrongful under all the circumstances" (Id.; see Goff v Clarke, 302 AD2d 725, 726 [3d Dept 2003]). In the prison context, while the use of "physical force is often required and used to control inmates" (Cepeda v Coughlin, 128 AD2d 995, 996 [3d Dept 1987], lv denied 70 NY2d 602 [1987]), Correction Law § 137 (5) prohibits the use of excessive force against inmates and provides as follows:
"No inmate in the care or custody of the department shall be subjected to degrading treatment, and no officer or other employee of the department shall inflict any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or insurrection. When any inmate, or group of inmates, shall offer violence to any person, or do or attempt to do any injury to property, or attempt to escape, or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape."
DOCS Regulations permit correction officers to use physical force against inmates, but "only such degree of force as is reasonably required shall be used" (7 NYCRR § 251-1.2 [b]) for the purposes of "self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape" (7 NYCRR § 251-1.2 [d]). No cause of action will lie where such force is neither "unreasonable or excessive under the circumstances or in violation of any policy or procedure of defendant" (Bush v State of New York, 57 AD3d 1066, 1067 [3d Dept 2008]).
The three Claims filed in these actions use the term "assault and battery" as if it were a single tort. The pleadings, however, allege facts to support a claim for battery, though not assault. Each Claim alleges that a correction officer intentionally used excessive force causing Claimant injury. The Claims do not allege that the correction officers placed Claimant in imminent apprehension of harmful contact. Moreover, even if Claimant had pleaded facts sufficient to support claims of assault, there was no evidence offered at trial to prove claims of assault. Therefore, for purposes of analyzing the intentional tort claims, the Court interprets the three separately filed Claims to each allege the intentional tort of battery.
Claim No. 110706 - Battery
Claimant testified on his own behalf and Captain Ramirez testified on behalf of the Defendant. Claimant was residing in the Special Housing Unit ("SHU") at the time of the incident that gave rise to Claim No. 110706. As part of his SHU residency, Claimant is handcuffed prior to leaving his cell and, conversely, his handcuffs are removed after he returns to his cell. This is accomplished by Claimant placing his hands through a hatchway in the cell door (known as the "feed-up" hatch) while inside his cell, so that correction officers outside his cell can reach his wrists and either apply or remove the handcuffs. On March 18, 2005, Claimant was escorted from his one hour of recreation time back inside his cell. He placed his handcuffed wrists through the feed-up hatch so that Correction Officer DiGennero could remove the handcuffs. His Claim alleges that a battery occurred when Officer DiGennero "violently yanked the handcuffs which caused claimants left shoulder to pop out of socket, causing excruciating pain" (Claim No. 110706, paragraph 8, filed March 30, 2005).
At trial, Claimant testified that "once the handcuffs [were] removed . . . [pause] . . . the officer pulled on my left wrist which caused my shoulder to fall out of socket." After pausing again, Claimant then added, "he yanked it a couple times." Claimant requested medical attention immediately and was seen by medical staff (see Claimant's Exhibit 1). He testified, however, that his shoulder went back into its socket on its own while he was on route to be seen at the medical unit. X-rays were taken of his shoulder which confirmed no fracture or dislocation (see Claimant's Exhibit 2). The radiologist's report notes: "Degenerative glenoid humeral joint disease. Fractured metallic screw in region of inferior rim of glenoid. No acute bone injury. No prior study. Comp with previous left shoulder study rec." (Claimant's Exhibit 2).
Claimant's trouble with his left shoulder began years ago. He tore ligaments in the shoulder while boxing, which allowed his shoulder to easily dislocate. On March 30, 1984 at Glens Falls Hospital, while an inmate at Great Meadow Correctional Facility, Claimant had his first shoulder surgery during which a screw was used to stabilize his shoulder. After being released from prison for a period, Claimant was incarcerated again on August 26, 1986. His January 21, 2005 Ambulatory Health Record, in preparation for his transfer to Eastern from Auburn Correctional Facility, notes that he complains of chronic spontaneous left shoulder dislocation. Upon arrival at Eastern, his January 25, 2005 Ambulatory Health Record notes a history of left shoulder dislocation. A January 28, 2005 X-ray report indicates that the screw in his shoulder was broken. Claimant's Ambulatory Health Records show that he made requests for sick call or emergency sick call for shoulder dislocation or shoulder pain nearly every day from January 25 through March 17, 2005, and sometimes more than once per day. Because of his chronic shoulder problem, Claimant was given a front cuff order so that he would not be handcuffed behind his back, a maneuver that could dislocate his shoulder.
Claimant filed a grievance regarding the incident, which was denied by the Superintendent.Correction Officer DiGennero has since retired from DOCS and no longer resides in the State of New York. Captain Ramirez, a 26-year veteran of DOCS, testified that, in response to Claimant's grievance, Officer DiGennero filed a brief report in 2005 denying that he forcibly moved Claimant's hand, arm or shoulder (see Defendant's Exhibit A). A use of force report was not filed for this incident.
Claimant argued that the grievance process was rigged against him because it is staffed with colleagues of the correction officers and is not objective. Nevertheless, he argued that he is required to follow the grievance process, and DOCS records show that he has filed 1,334 grievances between 1991 and 2009.
Initially, the Court observed that Claimant's testimony regarding the brief incident with the correction officer differed factually from his description of the incident in his Claim. After observing the demeanor of the witnesses as they testified and after considering their testimony and other evidence, the Court finds that Claimant has not met his burden to prove that a battery took place under these circumstances. The Court concludes that DOCS staff followed standard policy in routinely removing Claimant's handcuffs. Moreover, based on the testimony, the Court also concludes that there was no excessive or unreasonable force used to complete the task of removing Claimant's handcuffs. Rather, if Claimant experienced pain during the procedure, it seems more likely than not that it was the result of his chronic degenerative shoulder condition. Finally, although Claimant believed his shoulder to have been dislocated by Officer DiGennero, the only medical evidence in the record indicates that his shoulder was neither dislocated nor fractured. Accordingly, Defendant's motion to dismiss Claim No. 110706, made after the close of Claimant's proof, upon which the Court reserved decision, is hereby granted.
Claim No. 111519 - Battery
In this action Claimant alleges that, on October 10, 2005, he was handing his lunch meal tray through the feed-up hatch in his SHU cell door to Correction Officer Brown when the officer "violently grabbed Claimant by the left wrist and began yanking Claimant's left arm back and forth, up and down until Claimant's left shoulder fell out of socket" (Claim No. 111519, paragraphs 6 and 7, filed October 17, 2005).
At trial, Defendant orally moved to amend its Answer to assert the affirmative defense of collateral estoppel, which was not originally asserted in the Answer or in a pre-answer motion to dismiss (see CPLR § 3018 [b]; CPLR § 3211 [a] [5], [e]). Defendant provided to the Claimant and the Court a copy of an Amended Complaint (dated April 9, 2008) in a Federal civil rights action commenced by Mr. Tafari (9:07-CV-0654 [GHL]), as well as the jury's Verdict Sheet in that action signed and filed October 28, 2011. Defendant argued that one of the issues litigated in the Federal action was the same issue Claimant is seeking to litigate in the present case. Defendant further argued that, because the jury rendered a verdict against Mr. Tafari on the issue, the Court should dismiss his Claim No. 111519.
Leave to amend a pleading under CPLR 3025 (b) is freely granted in the exercise of the trial court's discretion, "unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise" (Bastian v State of New York, 8 AD3d 764, 765 [3d Dept 2004]). Such permission "should be granted even in midtrial in the absence of operative prejudice" (Ward v City of Schenectady, 204 AD2d 779, 781 [3d Dept 1994]). Here, the delay in amending the Answer is understandable because the Verdict Sheet was filed only last year, and nearly six years after Defendant's Answer was filed with the Court of Claims. Claimant argued neither surprise nor prejudice to the affirmative defense. Moreover, this particular affirmative defense does not raise new issues of fact in the present case. Indeed, the relevant language in the Federal Complaint is nearly identical to the relevant language in Claim No. 111519. Accordingly, at trial, the Court granted Defendant's oral motion and deemed Defendant's pleadings amended to include the affirmative defense of collateral estoppel.
Collateral estoppel "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984][citations omitted]). The proponent of collateral estoppel must "prove that the identical issue was necessarily decided in the prior action and is decisive in the present action" (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990] [citation omitted]). The party opposing collateral estoppel has the burden "to establish the absence of a full and fair opportunity to litigate" that issue in the prior proceeding (id.). The principles of collateral estoppel can bar in a subsequent State court action claims raised in an earlier Federal civil rights action (see Martinez v City of Schenectady, 276 AD2d 993, 995 [3d Dept 2000], affd 97 NY2d 78 [2001]).
Here, in response to Defendant's motion, Claimant argued that the causes of action were different, but conceded that the facts giving rise to his Federal action are exactly the same facts giving rise to his Claim. Indeed, Paragraph 41 of the Amended Complaint in the Federal action describes the very same incident that is set forth in the instant Claim. Moreover, the Amended Complaint seeks, among other things, a declaratory judgment that the actions of DOCS employees on various dates, including the actions of Officer Brown on October 10, 2005, constituted assault and battery under State law (as well as violations of his rights under the U.S. Constitution) (see Tafari v Kevin McCarthy, et al., 9:07-cv-0654-GHL, Amended Complaint, paragraph entitled Relief Requested, filed July 1, 2008 [NDNY]).While the factual allegations underpinning the requested relief appear in the Amended Complaint under the heading entitled, "Excessive Use of Force," and the Amended Complaint interchangeably uses the terms "assault," "battery," "misuse of force," and "excessive use of force," it is clear from the Amended Complaint that Claimant was litigating the same matter that he now seeks to litigate in the Court of Claims. Both actions seek essentially the same conclusion, namely a finding that a correction officer's conduct was improper and, in any event, "the essential elements of excessive force and state law assault and battery claims are substantially identical" (Humphrey v Landers, 344 Fed Appx 686, 688 [2d Cir 2009] [internal quotation marks and citation omitted]).
Additional background on the Federal action is set forth in Tafari v K. McCarthy, et al., 714 F Supp 2d 317 (NDNY 2010). The Amended Complaint contains numerous allegations of misconduct on the part of DOCS correction officers and employees during the period January 24, 2005 through May 23, 2006 while Claimant was incarcerated at Eastern Correctional Facility. The Federal action was commenced against the correction officers and employees in their official and individual capacities. The factual allegations in the Amended Complaint appear under the following general headings: "Cruel and Unusual Punishment, and/or Assault," "Retaliation," "Denial of Access to File Grievance Complaints," "Excessive Use of Force," and "Cruel and Unusual Punishment," Claimant's
Amended Complaint points out that he was issued ten Inmate Misbehavior Reports filed by nine different DOCS staff members and correction officers, between February 15, 2005 and November 15, 2005, charging him with numerous rule violations, including threats, harassment, creating a disturbance, interference, violent conduct and unhygienic act. He alleges that he was found guilty on all charges, and received SHU confinement, loss of privileges, and loss of good time as penalties, and that the penalties were affirmed on appeal. Claimant further alleges that such penalties constituted cruel and unusual punishment because they were imposed despite procedural irregularities. In any event, both the Amended Complaint and the three Claims covered by this decision clearly overlap and document an unfortunate and highly acrimonious relationship between Claimant and DOCS personnel.
According to the Judgment issued by the District Court, the jury "reached a verdict of no cause of action in favor of defendants" (Tafari v T. Brown, et al., 9:07-cv-0654-GHL, Judgment filed November 11, 2011 [NDNY]).Specifically, the jury determined that Officer Brown did not use force against Claimant on October 10, 2005 (see Tafari v T. Brown, et al., 9:07-cv-0654-GHL, Verdict Sheet filed October 28, 2011 [NDNY]). In the instant Claim, Claimant did not argue that he was denied a full and fair opportunity to litigate the issue in his Federal action. Accordingly, the Court granted Defendant's motion to dismiss the cause of action for battery in Claim No. 111519, concluding that such allegation was fully litigated in the Federal action (see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d at 664).
While not provided by Defendant, the Court obtained the Judgment of the District Court from the Public Access to Court Electronic Records database.
Claim No. 111759 - Battery
At trial, Claimant testified on his own behalf and Sergeant DiCairano and Officer Occhipinti testified on behalf of the Defendant. Claimant was residing in the SHU at the time of the incident that gave rise to Claim No. 111759. At approximately 8:10 PM on November 15, 2005, Claimant requested an emergency sick call for chest pains. Sergeant DiCairano and Correction Officers Occhipinti and Allison arrived to escort him to the facility medical unit. From inside his cell, Claimant placed his hands through the feed-up hatch in his cell door so that Officer Occhipinti could handcuff Claimant from the hall outside the cell. What happened next is in dispute, as a minor struggle between Claimant and the Officer ensued. Claimant testified that the correction officer slammed the cuffs on Claimant's wrist, pinching his wrist and causing him to jump and say "ow." Claimant further testified that Officer Occhipinti then placed his foot on the door and pulled Claimant's arms through the feed-up hatch, causing his face to hit the door, chipping a tooth, and causing scrapes on his right arm and wrist. Sergeant DiCairano and Officer Occhipinti testified that Officer Occhipinti was attempting to place the handcuffs on Claimant's wrists, that Officer Occhipinti placed one of the cuffs on Claimant's right wrist, that Claimant complained that the cuff was too tight and pulled his wrists back inside his cell, and that Officer Occhipinti, who still held on to the other end of the cuff, pulled on the handcuffs in an effort to regain control of the inmate. Both witnesses testified that Officer Occhipinti was pulled into the door while attempting to hold onto the handcuffs. The officer and the sergeant issued verbal orders to Claimant to stop resisting, and Claimant eventually submitted to being fully handcuffed and was brought out of his cell. Officer Occhipinti then stepped aside, as is the standard procedure after force is used on an inmate.
Claimant was escorted to the infirmary where he was examined and treated. A Use of Force Report was filed for the incident. Part B of the report is entitled "Physical Examination/Treatment Report" and includes a Part B Addendum entitled "Physical Examination/Treatment - Detail." Nurse E. Nordi, RN completed and signed Part B and the Part B Addendum (see Claimant's Exhibits 1 and 2). The Nurse observed that Claimant's right upper arm in the area of the bicep muscle had a "visible ecchymosis but no broken skin," and that Claimant's right hand had a "small laceration [with] a scant amount of bleeding" on the top of his right hand in the area between the base of the thumb and base of the index finger (Claimant's Exhibits 1 and 2). The nurse noted that there was no edema at either injury site and that the areas were cleansed and bandaged. However, there is no notation in the report of any injury to his teeth or mouth.Part C of the report entitled "Review and Evaluation by Superintendent" states "Force used appears appropriate and the minimal amount required to gain compliance" (Claimant's Exhibit 1).
Claimant testified that the incident caused his front incisor to break when his face hit the door. In contrast, the sergeant and officer testified that they did not see any broken tooth. Nevertheless, Claimant appears to have received emergency dental work at Eastern on November 16, 2005 (see Claimant's Exhibit 3). However, the dental record does not indicate the time of that work, and Claimant acknowledged he reported the loss of a front incisor crown at evening sick call on November 16, 2005. In any event, even assuming that the incident caused some damage to his tooth, it does not alter the Court's finding on the issue of whether the force used by the officer was unreasonable or excessive under the circumstances.
Like the October 10, 2005 incident in Claim No. 111519, this November 15, 2005 incident was also part of Claimant's Federal civil rights action discussed above. In his Federal action, Claimant alleged that Officer Occhipinti's actions constituted an assault and battery and the use of excessive force (see Tafari v Kevin McCarthy, et al., 9:07-cv-0654-GHL, Amended Complaint, paragraph entitled Relief Requested, filed July 1, 2008 [NDNY]). The jury, in reaching a verdict in favor of all the defendants, however, determined that the force used by Officer Occhipinti was not used "maliciously and sadistically to cause harm" (Tafari v T. Brown, et al., 9:07-cv-0654-GHL, Verdict Sheet filed October 28, 2011 [NDNY]).
Claimant was issued an Inmate Misbehavior Report for violating several prison rules during the incident and, after a Tier III disciplinary hearing was found guilty of engaging in violent conduct, refusing a direct order, interfering with an employee and committing an unhygienic act. That determination was affirmed after Claimant appealed administratively, and was confirmed by the Appellate Division (see Matter of Tafari v Selsky, 38 AD3d 1079 [3d Dept 2007], lv denied 8 NY3d 816 [2007]).
Claimant's version of the incident is different from Sergeant DiCairano's version and Officer Occhipinti's version in the aspect relevant to disposition of his Claim. Sergeant DiCairano is a 23-year veteran of DOCS and has been a sergeant since 2004. Officer Occhipinti has been a correction officer for DOCS for approximately 10 years. Overall, the Officer's testimony was very consistent with the testimony of his sergeant. After hearing the testimony of the witnesses, observing their demeanor as they testified, and considering the documentary evidence, the Court fully credits the testimony of Sergeant DiCairano and Officer Occhipinti, and concludes that Claimant has not met his burden to prove that an assault or battery took place during the incident. While the incident is unfortunate, as force was used by the officer, the Court finds that it was not a battery because such force was neither excessive nor unreasonable under the circumstances. Accordingly, Defendant's motion to dismiss Claim No. 111759, made after the close of Claimant's proof, upon which the Court reserved decision, is hereby granted.
During Claimant's case in chief, he confirmed with the Court that he would be allowed to present evidence of his medical claim along with his proof of damages relating to his causes of action for battery. Hearing no objection, the Court construed this offer of proof as relating to Claimant's negligent care allegations in Claim No. 111519.
Damages and Negligent Care
Because all three battery causes of action are dismissed, Claimant is not entitled to the recovery of damages resulting from those alleged intentional torts. However, the Court reaches a different conclusion with respect to Claimant's cause of action seeking damages for Defendant's alleged failure to provide him with timely medical care to his left shoulder. It is clear that "the State has a duty to render adequate medical services to inmates without undue delay" (Marchione v State of New York, 194 AD2d 851, 854-855 [3d Dept 1993]). Whether Defendant breached its duty of care in failing to timely schedule Claimant for surgery does not implicate questions of medical competence or judgment (see Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996]; Farace v State of New York, 176 AD2d 1228 [4th Dept 1991]). Accordingly, to prove his negligence cause of action, Claimant must establish the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his injuries (see Fox v Marshall, 88 AD3d 131, 135 [2d Dept 2011]).
Claimant alleges in Claim No. 111519, that he was denied medical treatment. Claimant testified that he suffered pain almost daily from his shoulder condition until his operation on May 14, 2007, and that Defendant unreasonably delayed his operation for approximately 14 months.He moved 14 health records into evidence that document significant points in the history of his shoulder ordeal from October 14, 2005 through May 14, 2007.
As discussed below, the period in question is actually 19 months.
On October 14, 2005, Claimant was evaluated by R. Mitchell Rubinovich, MD, an orthopedic surgeon as an outside consultant to DOCS. Dr. Rubinovich noted Claimant's limited range of movement and tenderness in Claimant's left shoulder and that X-rays revealed "significant separation of the two screw fragments." Dr. Rubinovich recommended that Claimant undergo surgery to "Stretch the Capsule, Remove the Screw and perhaps do an Anterior Stabilization" (Claimant's Exhibit 1-A, Medical Report of R. Mitchell Rubinovich, MD, dated October 14, 2005). According to Nurse M. Weig, Acting Nurse Administrator at Eastern, who testified on behalf of Defendant, Claimant was seen by Dr. Gusman at Eastern on November 15, 2005, prior to the incident giving rise to Claim No. 111519. Dr. Gusman noted that he discussed with Claimant that Dr. Rubinovich suggested a capsule repair of his left shoulder and that the procedure was approved by the central office but not scheduled. On February 13, 2006, Carl J. Koenigsmann, MD, DOCS' Regional Medical Director, wrote to Dr. Rubinovich indicating that Claimant's shoulder operation was awaiting scheduling with Dr. Rubinovich and that Dr. Koenigsmann had learned that day that Dr. Rubinovich desired to terminate his care of Claimant's shoulder injury (see Claimant's Exhibit 1-A, Correspondence from Carl J. Koenigsmann, MD dated February 13, 2006). Dr. Rubinovich responded by letter dated February 16, 2006 indicating that the operation was beyond his expertise (see Claimant's Exhibit 1-A, Correspondence from Mitchell Rubinovich, MD, dated February 13, 2006). There is no evidence in the record explaining why Claimant's shoulder surgery had not been scheduled between October 14, 2005 and February 13, 2006, almost four months after it was recommended by the DOCS' consultant.
On April 13, 2006, Claimant was again evaluated by an outside specialist, Jonathan Holder, MD, who also concluded that Claimant was a candidate for left shoulder surgery (see Claimant's Exhibit 1-A, NYS Department of Correctional Services Health Services System Request and Report of Consultation, signed April 13, 2006). Claimant's Ambulatory Health Record, dated May 16, 2006, indicates that Claimant's shoulder surgery was scheduled for May 25, 2006, but was cancelled based on the opinion of the State Psychiatrist dated May 11, 2006 (see Claimant's Exhibit 1-A, Ambulatory Health Record, dated May 16, 2006).DOCS next transferred Claimant to Five Points Correctional Facility on May 23, 2006 and requested a psychiatric evaluation.
The opinion of the State Psychiatrist is not in evidence, and Claimant testified that any such opinion would be baseless.
On July 6, 2006, Clamant underwent a psychiatric evaluation by William Goodman, MD, who cleared Claimant for surgery finding that "[patient] has many quarrels and grievances with care givers, which he has carefully documented. Though litigious, there is no evidence of illogicality, incompetence, psychosis or confusion. He is oriented, and insistent on his own behalf . . . . [Patient] has been difficult to manage due to oppositional attitude but there are no psychiatric justifications to deny surgery" (Claimant's Exhibit 1-A, NYSDOCS Request & Report of Consultation, signed July 6, 2006). Instead of scheduling Claimant's shoulder surgery, DOCS had him evaluated by another orthopedic doctor. On September 11, 2006, Russell Zelko, MD concluded that Claimant should return to Dr. Holder for surgery at Mount Vernon Hospital (see Claimant's Exhibit 1-A, NYS Department of Correctional Services Health Services System Request and Report of Consultation, signed September 11, 2006).
Inexplicably, instead of sending Claimant to Dr. Holder, DOCS sent him back to Dr. Rubinovich who, on January 19, 2007, evaluated Claimant and reported that "[Patient] needs to see Dr Holder at Mt. Vernon Hospital. He has already agreed to do surgery" (Claimant's Exhibit 1-A, NYS Department of Correctional Services Health Services System Request and Report of Consultation, signed January 19, 2007). On February 15, 2007, X-rays were taken of Claimant's left shoulder which revealed the broken screw, and it was noted that "This Is Unchanged from Prior Studies" (Claimant's Exhibit 1-A, Document, dated February 15, 2007).
On March 8, 2007, Claimant was again evaluated by Dr. Holder, who requested that Claimant be scheduled for left shoulder arthroscopy with capsulorrhaphy and possible open capsulorrhaphy and broken screw removal (Claimant's Exhibit 1-A, NYS Department of Correctional Services Health Services System Request and Report of Consultation, signed March 8, 2007). Finally, on May 14, 2007, 19 months after surgery was initially recommended by DOCS' consultant Dr. Rubinovich, Claimant's surgery was performed by Dr. Holder at Mount Vernon Hospital.
After reviewing the evidence and assessing the credibility of the witnesses, the Court concludes that Defendant failed to timely schedule Claimant's shoulder surgery, and that such failure constituted a breach of its duty of care, causing Claimant a prolonged period of unnecessary pain. Even assuming that the unexplained delay in scheduling that occurred between Dr. Rubinovich's recommendation on October 14, 2005 and Dr. Rubinovich's withdrawal on February 13, 2006 was the result of Dr. Rubinovich's reluctance and, therefore, not Defendant's negligence, the same cannot be said for the long delay after Claimant was cleared for surgery by Dr. Goodman on July 6, 2006. It took Defendant eight months to get Claimant back to Dr. Holder and an additional two months until the surgery was finally performed. That eight-month delay is unreasonable under the circumstances of this case. Especially troubling is the referral back to Dr. Rubinovich, who had previously documented that the surgery was beyond his expertise. Based on the breach of Defendant's duty, the evidence reveals that Claimant was caused to suffer from frequent pain and tenderness to his left shoulder, limited range of motion, and that his left shoulder would periodically dislocate. In assessing the amount of damages to be awarded to Claimant, the Court has considered Claimant's testimony that he has healed well from the surgery and that there is no evidence of any permanent injuries sustained as a result of Defendant's breach. Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor, the Court finds that defendant is 100 percent liable for Claimant's pain and suffering for a period of eight months and Claimant is entitled to an award of $2,400.00 for his past pain and suffering.
Based on the above, the Court awards Claimant $2,400.00 for past pain and suffering. To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2). Any motions not previously ruled upon are hereby denied.
Let judgments be entered accordingly.
June 29, 2012
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims