Opinion
# 2015-038-102 Claim No. 109654
02-24-2015
JESSIE J. BARNES v. STATE OF NEW YORK
JESSIE J. BARNES, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Thomas Monjeau
Synopsis
Incarcerated claimant asserted that defendant negligently trained and supervised correctional facility staff with regard to the protection of confidential medical information and the handling and processing of grievances, and that facility medical personnel retaliated against claimant by denying him suppositories for his hemorrhoidal condition. Claim dismissed after trial. Preponderance of the evidence did not support any of his asserted and maintainable causes of action.
Case information
| UID: | 2015-038-102 |
| Claimant(s): | JESSIE J. BARNES |
| Claimant short name: | BARNES |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 109654 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JESSIE J. BARNES, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Thomas Monjeau |
| Third-party defendant's attorney: | |
| Signature date: | February 24, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a state correctional facility, filed this claim, as amended, alleging various acts of alleged malfeasance committed at Upstate Correctional Facility (CF) from 2003 to 2004 related to the provision of medical care, the disclosure of medical records and the inmate grievance process. The trial of this claim was conducted by videoconference on November 13, 2014, with the parties appearing at Upstate CF in Malone, New York and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony, as well as that of Marla L. Travers, a nurse employed by the Department of Corrections and Community Supervision at Upstate CF; defendant called Nancy Smith, a nurse administrator employed at Upstate CF. Numerous documents were offered by claimant and received into evidence without objection; defendant offered no exhibits. After listening to the witnesses's testimony and observing their demeanor as they testified, and upon consideration of that evidence, all of the other evidence received at trial, and the applicable law, the Court makes the following findings of fact and conclusions of law.
Since DOCCS was known at the time of the events in the claim as the Department of Correctional Services (DOCS), the decision will refer to the executive agency by its former name.
FACTS
The amended claim alleges that from February 2003 through to its filing date of August 20, 2004, defendant's agents at Upstate CF were negligent in failing to "properly train or supervise" its medical personnel with respect to the confidentiality of inmate medical records (see Claimant's Exhibit 5, ¶ 2), and that medical personnel deprived claimant of medications in retaliation for his filing of grievances. Specifically, the claim alleges that medical personnel at Upstate CF released claimant's medical records to members of the Inmate Grievance Resolution Committee (IGRC), that claimant was harassed by correction officers (COs) and inmates at Upstate CF utilizing information contained within his medical records, and that Upstate CF medical staff failed to provide claimant with suppositories for his hemorrhoids. The amended claim also seeks a judgment pursuant to CPLR 3001 declaring that the release of claimant's medical records to the IGRC without claimant's consent is unconstitutional, and awarding damages. The amended claim further alleges that the Upstate CF officials failed to properly train or supervise the Inmate Grievance Program (IGP) Supervisor L. Peary in the proper handling and processing of inmate grievances.
The amended claim misnomers this body as an Inmate Grievance Program Committee.
Claimant testified that he had a hemorrhoidal condition and that the Upstate CF medical staff "never" gave him suppositories when he requested thm. Claimant's Ambulatory Health Record (AHR) from Upstate CF reveals that between January 20 and August 20, 2004, claimant had 197 encounters with medical staff, 23 of which reference hemorrhoids or rectal pains (see Claimant's Exhibit 1). In 7 of those 23 entries, it was noted that claimant had requested and was denied suppositories at nursing sick call (NSC) (see Claimant's Exhibit 1, May 4, May 19, May 20, June 18, July 3, July 18 and August 16, 2004 entries). An AHR entry on May 21, 2004 appears to indicate that claimant requested suppositories for hemorrhoids but that the physician's assistant (PA) "noted hemorrhoids tx [treatment] medically indicated" (id.). Three of the 23 entries indicate that suppositories were dispensed to claimant (id., May 2, May 5 and June 19, 2004 entries). One entry has no record of hemorrhoids or rectal pain, but contains a notation that suppositories were requested but apparently not dispensed, which could be construed as a denial (id., July 15, 2004 entry). In addition, there were two further entries indicating that suppositories were dispensed without any reference to hemorrhoids or rectal pain (id., July 19 and August 18, 2004 entries). Thus, claimant's AHR reflects that between May 2 and August 18, 2004, claimant was issued suppositories on 5 occasions and denied suppositories on 9 occasions. On 8 of those 9 occasions, reasons were given for the denial (see id., May 4, 2004 entry ["has been seen by PA for C/O hemorrhoids which time his exam was negative, therefore no suppositories"]; May 19 and 20, 2004 entries ["per PA does not need suppositories"]; May 28, 2004 ["PA noted hemorrhoids tx [treatment] medically indicated"]; May 24, 2004 entry [" tx [treatment] medically indicated"]; June 18, 2004 entry ["had exam by PA regarding suppositories, in which it was established that there is no need for suppositories"]; July 3, 2004 entry ["last exam showed hemorrhoids OTC medically indicated"]; July 18, 2004 entry ["no medical need"]; August 16, 2004 entry [" med problem"]). The only AHR entry recording an interaction with a PA prior to the nine entries denying suppositories was on April 20, 2004, in which there was no record of any complaints of hemorrhoids or a rectal examination, just a notation of "mult complaints" and "normal exam" (id., April 20, 2004 entry).
All quotations are to the Court's trial notes or the digital audio recording of the trial, unless otherwise indicated.
Nursing Administrator Nancy Smith testified that when inmates request a specific medication or treatment at NSC, the nurse will evaluate the inmate or ask questions and administer the medication or treatment "on a need, not want" basis. Nurse Marla Travers similarly testified that she would not provide a suppository on NSC unless she believed it necessary before the next callout. Smith further testified that if an inmate requests suppositories for hemorrhoids, a rectal examination would not be done at the inmate's cell, but would be performed by a provider (physician, PA or nurse practitioner) at the nurse's station, and suppositories would be issued or denied based upon a determination of medical necessity.
Claimant testified that he had filed grievances against Upstate CF medical staff about the denial of requested suppositories, and that medical staff improperly disclosed his private medical records and information to the IGRC. Claimant testified that Sergeant Snyder was a member of the IGRC that reviewed his grievances, and that Sgt. Snyder and Correction Officer LeClair subsequently harassed him about his rectal bleeding and hemorrhoidal condition, and accused him of being a homosexual, which humiliated him and caused him anxiety. Five grievances that were filed by claimant included allegations that Upstate CF medical staff ignored his medical complaints, refused to dispense suppositories for his hemorrhoids, and breached his medical confidentiality or improperly disclosed his medical records (see Claimant's Exhibit 2, UST-17104-03, filed Sept. 8, 2003 [ignored medical complaints and breached medical confidentiality]; UST-19645-04, filed May 6, 2004 [disclosed medical records to IGRC]; UST-19665-04, filed May 5, 2004 [denied suppositories]; UST-19811-04, filed May 20, 2004 [same]; UST-20216-04, filed June 29, 2004 [same]). In its denial of the grievance alleging that his medical records were improperly disclosed to the IGRC, the Central Office Review Committee (CORC) stated that "when the grievant files a grievance concerning medical care or treatment he affirmatively puts the issue into contention resulting in an implied waiver of confidentiality" (id., UST-19645-04).
Nurse Administrator Smith testified that the patient confidentiality standards under the Health Insurance Portability and Accountability Act (HIPAA) apply to DOCS, and that an inmate's medical records may be released only to another medical provider or entity that is providing direct care to an inmate. Smith testified that inmate medical records are always kept at the nurse's station on the inmate's cell block and that the records are transported only to the Nurse Administrator's office, the infirmary or another provider for a medical appointment, or to another correctional facility if an inmate is transferred. Smith testified that all Upstate CF staff, including medical staff, corrections officers and civilian staff, receive training on patient confidentiality. Smith testified that grievances concerning the provision of medical care ("medical grievance"), are known as a "Code 22," for which the Grievance Nurse will review the medical records and "work up" a grievance response that is forwarded to the Grievance Office. Medical grievances that allege racial slurs, retaliation or harassment against nursing staff are known as a "Code 49" for which Smith, as the Nurse Administrator, investigates and reviews the medical records and prepares a grievance response. Smith testified that medical records are not provided to the IGRC regardless of whether the medical grievance is a Code 22 or a Code 49. Whenever the IGRC reviews medical grievances, a nurse sits on the IGRC to interpret the grievance response, but that nurse would not have access to the inmate's medical records.
During argument in opposition to defendant's motion to dismiss the claim at trial, claimant alluded to a grievance decision that allegedly stated that the IGRC had the right to possess and review medical records during their deliberation, but this IGRC decision is not among those that have been filed along with the pleadings and submitted as exhibits during the trial.
Claimant testified that grievances that he filed with IGP Supervisor L. Peary were mishandled in an "atrocious" manner. Specifically, claimant testified that grievances would appear and disappear, investigative reports would not be completed, and that grievances were missing CORC appeals. During a 20-month period in 2003-2004, claimant filed approximately 180 grievances at Upstate CF (see Claimant's Exhibit 4, at Exhibit A). The Court received into evidence a legion of letters between claimant and various DOCS officials regarding alleged deficiencies in the manner that his grievances were being handled dating back to March 2003, which predates Peary's tenure as IGP Supervisor, and it appears that claimant filed a grievance against the IGP Supervisor in 2004 (see id., Correspondence of Edward J. McSweeney, DOCS Assistant Commissioner, dated March 19, 2004, referencing UST-19073-04).
DISCUSSION
The amended claim, claimant's proof and his arguments at trial present two theories of liability. First, that defendant negligently trained and supervised Upstate CF staff with regard to the protection of confidential medical information and the handling and processing of grievances. Second, that Upstate CF medical personnel retaliated against claimant by denying him suppositories for his hemorrhoidal condition. At the conclusion of claimant's proof at trial, defendant moved to dismiss the claim for lack of a prima facie case on the grounds that claimant did not adduce any proof that defendant's agents failed to properly train and supervise in HIPAA confidentiality or that his medical information was not properly safeguarded, that HIPAA does not provide a private cause of action, and that the alleged improper handling of grievances by Peary is not part of the claim. Claimant opposed the motion, arguing that the amended claim asserts allegations that grievances were mishandled, and noting that defendant did not address claimant's allegations that he was denied suppositories. The Court reserved decision on the motion, and after presenting proof, defendant moved again for dismissal of the claim, which claimant opposed.
The amended claim alleges that Sgt. Snyder and CO LeClair verbally harassed claimant, but no cause of action related to that conduct is asserted in the amended claim.
Claimant's first theory that defendant negligently trained and/or supervised its employees will be dismissed because it is not supported by the allegations in the amended claim or by the proof at trial. While an employer may be held liable for the work-related negligence of its employees under the doctrine of respondeat superior, the alternate theory of negligent training and supervision requires a showing that the employees in question were acting outside the scope of employment (see Passucci v Home Depot, 67 AD3d 1470, 1472 [4th Dept 2009]; see also Gray v Schenectady City School Dist., 86 AD3d 771, 773-774 [3d Dept 2011] [employee must be acting outside the scope of duties to sustain cause of action for negligent supervision and retention]). There are no allegations in the amended claim, nor was evidence adduced at trial, that any member of Upstate CF medical staff was acting outside the scope of his or her duties by reviewing and explaining claimant's relevant medical information in response to his medical grievances, or that Peary was acting outside of the scope of her employment with regard to the handling of inmate grievances.
Claimant's allegations that his private medical information was improperly disclosed during the grievance process, in violation of state or federal law, are not supported by any persuasive evidence that claimant's medical records were, in fact, disclosed by any members of the medical staff or the IGRC. To the contrary, the credible testimony demonstrates that claimant's hemorrhoidal condition was made known to the IGRC through the filing of his grievances and his medical records were not shared with the IGRC. Moreover, assuming that claimant's private medical information from his patient file was improperly disclosed, he has not articulated any State statutory or common law violation, and HIPAA does not create a private right of action (see Fernandez v State of New York, 43 Misc 3d 1221[A], at *2 [Ct Cl 2014], citing Warren Pearl Const. Corp v Guardian Life Ins. Co. of America, 639 F2d 271, 377 [SDNY 2009]; Alsaifullah v Furco, 2013 WL 397214, at 17 [SDNY 2013]).
Turning next to the allegations that Upstate CF medical staff retaliated against claimant by not providing him with suppositories for his hemorrhoidal condition, claimant offered no persuasive testimony or other evidence that would preponderate in favor of a finding of any such cause of action. To the extent that the parties dispute whether the alleged denials of suppositories without a prior rectal examination constituted medical malpractice or medical negligence, expert medical opinion is required because such an issue is not within the knowledge or experience of laypersons (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]). The evidence adduced at trial, particularly those entries in claimant's AHR that set forth reasons for the denial of suppositories, clearly demonstrates that defendant's decisions to deny claimant suppositories involved the exercise of medical judgment. Thus, expert medical proof was required to edify the lay factfinder on medical issues relevant to the reasons for dispensing or withholding suppositories from one who complains of hemorrhoids and rectal pain. Claimant offered no proof that would demonstrate prima facie that the medical treatment of his complaints by Upstate CF medical personnel was deficient or that it departed from accepted standards of medical care.
The second cause of action in the amended claim seeking a declaratory judgment pursuant to CPLR 3001 that the release of claimant's medical records to the IGRC without claimant's consent is unconstitutional must be dismissed because "the Court of Claims is not the appropriate forum in which to seek declaratory relief" (Shelton v New York State Liquor Auth., 61 AD3d 1145, 1151 [3d Dept 2009]). To the extent that the second cause of action seeks to vindicate a federal constitutional right, this Court lacks jurisdiction (see Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010], lv denied 17 NY3d 707 [2011]). Further, and to the extent the second cause of action seeks damages arising from a state constitutional tort, such a cause of action is unavailable because other remedies such as common-law torts and administrative grievances are available to claimant to enforce any claimed constitutional right (see Brown v State of New York, 89 NY2d 172, 189-192 [1996]; Martinez v City of Schenectady, 97 NY2d 78, 83- 84 [2001]; Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]). In sum, claimant failed to prove any of his asserted and maintainable causes of action by a preponderance of the credible evidence, and defendant's motion to dismiss the claim is granted.
CONCLUSION
The Court finds in favor of defendant. Any motions not previously ruled upon are hereby DENIED. The Acting Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.
February 24, 2015
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims