Opinion
# 2017-015-212 Claim No. 128214 Motion No. M-89693 Cross-Motion No. CM-89772
03-13-2017
SHAWN GREEN v. THE STATE OF NEW YORK
Shawn Green, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General
Synopsis
Defendant moved for summary judgment dismissing the claim and claimant cross-moved for partial summary judgment in his favor. The Court denied defendant's motion to the extent it sought dismissal of the claimant's medical malpractice cause of action since it failed to establish that the care and treatment rendered the claimant for his diabetes conformed to the applicable standard of care. Claimant, however, failed to establish his entitlement to summary judgment on his medical malpractice cause of action as no expert affidavit was provided. Defendant's motion seeking dismissal of claimant's second and third causes of action, based on a ministerial failure to comply with a Correction Law § 601 (a) and certain regulations requiring completion of a healthcare transit forms was granted and these causes of action were dismissed. Correction Law § 601 (a) does not apply to inmate transfers between facilities and neither the statute nor the regulations relied upon give rise to a cause of action for civil damages in the event of a violation.
Case information
| UID: | 2017-015-212 |
| Claimant(s): | SHAWN GREEN |
| Claimant short name: | GREEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128214 |
| Motion number(s): | M-89693 |
| Cross-motion number(s): | CM-89772 |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Shawn Green, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 13, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for summary judgment dismissing the claim. Claimant opposes the motion and cross-moves for partial summary judgment on the issue of liability.
Claimant, a pro se inmate, alleges three causes of action, the first for medical malpractice and/or medical negligence, the second for defendant's alleged failure to complete certain healthcare transit forms, and the third for defendant's alleged failure to provide him with headphones during the period of his confinement to the Special Housing Unit at Great Meadow Correctional Facility. Claimant alleges that he was temporarily transferred to Great Meadow Correctional Facility on April 4, 2016 for the purpose of attending a medical appointment on April 7, 2016. With respect to his first cause of action for medical malpractice/negligence claimant alleges that, upon his arrival at Great Meadow, Physician's Assistant Ted Nesmith drastically reduced his insulin dosages which resulted in complications in his diabetes during the period of his confinement at Great Meadow. According to the claimant, due to Mr. Nesmith's "departure from standard practices or lack of knowledge/skill and a medical foundation to render professional judgment for claimant's D/M treatment, he suffered unnecessary diabetes complications" (defendant's Exhibit A, ¶ 5).
Claimant alleges as his second cause of action that medical staff failed to complete an Inmate Healthcare Transit Form (form no. 3276) and Health Transfer Information Form (form no. 3611) in violation of Correction Law § 601. For his third cause of action claimant alleges that his request for headphones was denied in violation of 7 NYCRR 303.1 (a) and 303.2 (b).
In support of its motion for summary judgment, defendant proffers the affidavit of Ted Nesmith, a Physician's Assistant at Great Meadow Correctional Facility. Mr. Nesmith states that he performed a medical screening of the claimant on April 5, 2016 upon his temporary transfer to Great Meadow in order to attend a medical appointment with a gastroenterologist outside the facility (defendant's Exhibit D, ¶ 5). Mr. Nesmith reviewed the claimant's ambulatory health records and prescribed Lantus once a day and "regular insulin 4 Unit, three times a day (TID)" (id. at ¶ 6). According to Mr. Nesmith:
"I wrote a prescription for the same medications the claimant was on when he arrived. When the claimant left the Great Meadow Correctional Facility at the end of April 2016, he left on the same prescription for insulin that he was on when he arrived. At no time did I, nor anyone else at the Great Meadow Correctional Facility, change, increase, or decrease the insulin medication the claimant was on while he was at the Great Meadow[] Correctional Facility in April 2016" (id. at ¶ 7).
With respect to the healthcare forms claimant alleges the defendant failed to complete, Mr. Nesmith indicates that form 3611, entitled Health Transfer Information, is only used when an inmate goes on a non-medical trip and his health record does not accompany him (id. at ¶ 9). Mr. Nesmith also indicates that although a form 3276 entitled "Inmate Health Care Transit Form" would have been completed, "this form does not become part of an inmate's medical [record] and is eventually discarded" (id. at ¶ 9). Mr. Nesmith states he was able to review claimant's ambulatory health records "that came with the inmate" and that completion of the forms had no effect on the care provided to the claimant while he was at Great Meadow Correctional Facility (id. at ¶ 10).
It is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978][citation omitted]). "The 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]). At this stage, the evidence must be viewed " 'in the light most favorable to the non-moving party,' " (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40 [2015], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). Once the movant has met its burden, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof)" (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012]).
In order to meet its burden on a motion for summary judgment dismissing claimant's first cause of action for medical malpractice, defendant was "required to present factual proof, generally consisting of affidavits, deposition testimony and medical records, to rebut the claim of malpractice by establishing that [it] complied with the accepted standard of care or did not cause any injury to the patient" (Macaluso v Pilcher, 145 AD3d 1559, 1560 [4th Dept 2016] [internal quotation marks and citation omitted]). Defendant failed to meet that burden here. While Mr. Nesmith's affidavit refutes the allegation in the claim that he drastically reduced claimant's insulin dosages, it fails to demonstrate that the treatment rendered for claimant's diabetes conformed to the applicable medical standard of care. As claimant points out in opposition to the motion, the ambulatory health record of March 8, 2016, which Mr. Nesmith allegedly reviewed, indicates with respect to claimant's prescription for insulin that "if FBS is > 200 give additional 2 units" (defendant's Exhibit B). The ambulatory health record progress note of April 19, 2016, submitted by the defendant in support of its motion, indicates that claimant's FBS was 458. The expert medical evidence offered in support of defendant's motion in an effort to establish that the treatment provided the claimant during his confinement at Great Meadow conformed to the applicable standard of care is, in the Court's view, insufficient to negate the existence of triable issues of fact. Defendant therefore failed to meet its burden of establishing its prima facie entitlement to summary judgment as a matter of law with respect to claimant's first cause of action.
To the extent claimant cross-moves for summary judgment on his first cause of action for medical malpractice he, too, failed to establish his prima facie entitlement to judgment as a matter of law. Claimant submitted no expert medical evidence to support his claim that the treatment rendered during his confinement at Great Meadow was negligent or deviated from applicable standards of medical care or that any such negligence or deviation was a proximate cause of his injuries. Where the medical issues are not within the ordinary experience and knowledge of lay persons, "the opinion of a medical expert is required to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to claimant"s injuries (see Welch v State of New York, 105 AD3d 1450 [4th Dept 2013], citing Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]). No such medical evidence was offered by the claimant here. Thus, claimant's cross motion for partial summary judgment on his first cause of action must be denied. Claimant's second and third causes of action for damages arise from alleged violations of Correction Law 601 (a) (second cause of action) and 7 NYCRR 303.1 (a) and 303.2 (b) (third cause of action). A plain reading of Correction Law § 601 (a) indicates that it does not apply to inmate transfers between state facilities. In any event, Mr. Nesmith's affidavit establishes that the completion of the healthcare transit forms had no effect on the care provided to the claimant while he was at Great Meadow. Moreover, to the extent claimant's second and third causes of action are premised upon a ministerial failure to comply with Correction Law § 601 or 7 NYCRR 303.1 and 303.2, neither the statute nor the cited regulations make express provision for civil damages nor may a private right of action be fairly implied (see Sheehy v Big Flats Community Day, 73 NY2d 629 [1989]). Accordingly, claimant's recourse for such alleged violations lies in a proceeding pursuant to CPLR article 78, not a plenary action for damages in the Court of Claims.
Based on the foregoing, defendant's motion is granted to the limited extent of dismissing claimant's second and third causes of action and is otherwise denied. Claimant's cross motion is denied in its entirety.
March 13, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
1. Notice of motion dated December 22, 2016;
2. Affirmation of Paul F. Cagino dated December 22, 2016 with exhibits;
3. Affidavit of Ted Nesmith sworn to December 20, 2016 with exhibits.
4. Notice of cross motion dated January 6 2017;
5. Affidavit of Shawn Green sworn to January 6, 2017.