Opinion
# 2014-044-543 Claim No. 117559 Motion No. M-84758
09-03-2014
CURTIS SUBA and ROSE ROSS SUBA v. THE STATE OF NEW YORK
OFODILE & ASSOCIATES, P.C. BY: Anthony C. Ofodile, Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Belinda A. Wagner, Assistant Attorney General
Synopsis
Court granted defendant's motion for summary judgment in inmate's claim for medical malpractice/negligence, as well as assault.
Case information
| UID: | 2014-044-543 |
| Claimant(s): | |
| Claimant short name: | SUBA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117559 |
| Motion number(s): | M-84758 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | OFODILE & ASSOCIATES, P.C. BY: Anthony C. Ofodile, Esq., of counsel |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Belinda A. Wagner, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 3, 2014 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Rose Suba's claim is derivative in nature, and unless otherwise indicated or required by context, the term "claimant" shall refer to Curtis Suba.
filed this claim containing numerous causes of action alleging medical malpractice, negligence, and assault based upon the medical care he received for a medical condition of his right wrist while he was in the custody of the Department of Corrections and Community Supervision (DOCCS). Defendant State of New York (defendant) answered and asserted several affirmative defenses. Defendant now moves for summary judgment. Claimant opposes the motion.
Defendant argues that because claimant did not assert factual allegations supporting a cause of action for assault in his notice of intention to file a claim, that cause of action in the claim is time-barred. Defendant further contends that claimant's allegations of negligence cannot stand as they are not independent from the allegations of medical malpractice. Defendant also asserts that it cannot be liable for the alleged malpractice of the surgeon as he was an independent contractor operating at a non State-owned or State-controlled medical facility.
Conversely, claimant contends that the claim was filed within one year of his second surgery and therefore the cause of action alleging assault is timely. Claimant also argues that he was examined and evaluated by the surgeon within the confines of a correctional facility and even though surgery took place at an outside hospital, he was immediately returned to the facility for the remainder of his treatment. As a result, claimant asserts that defendant is liable for the action of the surgeon, even if he was an independent contractor, pursuant to the theory of ostensible agency.
The Court will initially address defendant's contention that the cause of action for assault is untimely. Claimant bases this cause of action upon the allegation that even though both he and claimant Rose Suba had specifically informed defendant and Dr. Jeffrey Arliss that Arliss was not permitted to perform a second operation on claimant, Arliss nevertheless performed the surgery on October 20, 2008. Court of Claims Act § 10 (3-b) provides that a claim for personal injuries caused by the intentional tort of an officer or employee of the State must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim "in which event the claim shall be filed and served upon the [A]ttorney [G]eneral within one year after [its] accrual." In this case, claimant's cause of action for battery accrued on October 20, 2008 when Arliss performed the second surgery. Thus, claimant had until January 20, 2009 in which to file and serve a claim, or to serve a notice of intention. Claimant's service of the notice of intention on June 26, 2009 is untimely on its face. Defendant appropriately raised the untimeliness of the notice of intention with sufficient particularity in its first affirmative defense (Court of Claims Act § 11 [c]). Accordingly, defendant's motion is granted to the extent that the cause of action for battery is dismissed.
Claimant denominated the cause of action as one for assault. However, because there was actual bodily contact rather than a mere apprehension of harmful contact (which is an essential element of an assault) (see Bastein v Sotto, 299 AD2d 432, 433 [2d Dept 2002]), the cause of action is one for battery and will be referred to as such throughout the remainder of this Decision and Order (see Zgraggen v Wilsey, 200 AD2d 818, 819 [3d Dept 1994]).
Although January 18, 2009 was the 90th day after accrual, because it was a Sunday, the time to serve the claim was extended until the next business day which was January 20, 2009 (General Construction Law § 25-a [1] [January 19, 2009 was Dr. Martin Luther King, Jr. Day, a public holiday (General Construction Law § 24)]).
In light of the Court's finding that the notice of intention was not timely with respect to a cause of action alleging battery, it is not necessary to address defendant's alternate contention that the notice of intention did not contain sufficient allegations to give notice of a cause of action for battery.
Defendant, as the movant on this motion for summary judgment, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons," including proper diagnosis and treatment (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]). There is a subtle distinction between medical negligence and medical malpractice. The Court of Appeals has recognized that although a medical provider "in a general sense is always furnishing medical care to patients . . . not every act of negligence toward a patient would be medical malpractice" (Bleiler v Bodnar, 65 NY2d 65, 73 [1985]). When the allegedly wrongful conduct "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician," the cause of action is for medical malpractice rather than negligence (id. at 72; see Scott v Uljanov, 74 NY2d 673 [1989]). "By contrast, when the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [provider's] failure in fulfilling a different duty, the claim sounds in negligence" (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] [internal quotation marks omitted]).
Defendant argues that the causes of action alleging negligence do not have independent bases from those causes of action alleging malpractice and should therefore be dismissed. In his claim, claimant has set forth several causes of action denominated as negligence which contain allegations virtually identical to those contained in several causes of action characterized as malpractice. Specifically, claimant's third cause of action (negligence) and the tenth cause of action (malpractice) both allege that Arliss performed an unnecessary and major reconstructive surgery on claimant's wrist when only a minor procedure was required. Similarly, the fourth cause of action (negligence) and the eleventh cause of action (malpractice) contain allegations that during the first surgery, Arliss broke a new screw while inserting it into claimant's wrist but nevertheless allowed it to remain.
Likewise, both the fifth cause of action (negligence) and the twelfth cause of action (malpractice) allege that Arliss was remiss for not ordering any follow-up care or treatment for claimant during the six months after surgery. Claimant's eighth (negligence) and thirteenth (malpractice) causes of action concern Arliss' allegedly improper conduct/performance during the second surgery. Lastly, the ninth (negligence) and fourteenth (malpractice) both allege that during the second surgery, Arliss improperly failed to remove the portion of the screw he broke during the first surgery.
Clearly, the allegations contained in the third, fourth, fifth, eighth and ninth causes of action all pertain to the rendition of medical treatment to claimant and thus are causes of action for malpractice (see Scott, 74 NY2d at 675; Bleiler, 65 NY2d at 72). Accordingly, defendant has met its burden of establishing its entitlement to dismissal as a matter of law of these five causes of action as duplicative of the tenth, eleventh, twelfth, thirteenth and fourteenth causes of action.
The burden now shifts to claimant to set forth admissible evidence which would create questions of fact. Claimant has submitted no evidence or argument in opposition with respect to dismissal of the third, fourth, fifth, eighth and ninth negligence causes of action. Accordingly, these five causes of action are hereby dismissed.
The Court will address claimant's first, second, and sixth causes of action (which pertain to defendant's alleged negligence in hiring Arliss and allowing him to operate on claimant) infra.
Defendant argues that because Arliss was not its employee or agent, it cannot be liable for any malpractice attributable to him. In general, "a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts" (Kleeman v Rheingold, 81 NY2d 270, 273 [1993]; see also Hill v St. Clares's Hosp., 67 NY2d 72, 79 [1986]). Exceptions to this general rule exist in cases where the work to be performed by the contractor is inherently dangerous or where the employer is under a specific nondelegable duty (see Kleeman, 81 NY2d at 274).
In support of this motion, defendant has submitted the affidavit of Richard McDevitt, DOCCS Regional Health Services Administrator. McDevitt explains that DOCCS employs primary care physicians to provide basic medical care to all inmates. If a primary care physician determines that an inmate needs specialized care beyond that care which the facility physician can provide, a request is made to DOCCS to authorize a consultation. If the inmate agrees to the care suggested and DOCCS authorizes the consultation, the inmate is requested to sign a "Contract for Specialty Care Appointment." McDevitt indicates that the consultant may have a contract with DOCCS to examine or treat the patient at the consultant's office, a clinic at a DOCCS facility or at a hospital, either as an out-patient or an in-patient. McDevitt likens the referral to one that a non-incarcerated individual would obtain from his or her primary care provider in order for that individual's health maintenance organization (HMO) to approve a consultation with a specialist who is not an employee of either the primary care provider or the HMO. McDevitt states that claimant did not need to sign a contract to see his primary care provider or any other medical care provider at his facility. However, claimant was required to sign the "Contract for Specialty Care Appointment" when he agreed to go outside the facility for specialized orthopedic care.
McDevitt acknowledges that claimant had surgeries on his hand and wrist on February 4, 2008 and October 20, 2008, both of which were performed by Dr. Jeffrey Arliss at The Kingston Hospital. McDevitt states that Arliss was not a DOCCS employee and DOCCS had no control or supervision over Arliss and how he performed the surgeries at The Kingston Hospital. McDevitt also indicates that The Kingston Hospital is not a State health care facility.
Dr. Jon Miller, a physician and the Facility Health Director at Coxsackie Correctional Facility (Coxsackie), also provided an affidavit in support of defendant's motion. Miller states that claimant was his patient while he (claimant) was housed at Coxsackie. Miller states that claimant had surgery on his wrist prior to arriving at Coxsackie. In late 2007, claimant apparently reinjured the wrist and at that time, Miller determined that "[claimant] needed to be [examined] by a surgeon . . . at a DOCCS orthopedic clinic, and if necessary, [have] surgery at an out-patient location." Claimant agreed with Miller's suggestion and was seen by a surgeon at a DOCCS orthopedic clinic. Miller notes that claimant had two surgeries, one on February 4, 2008 and the other on October 20, 2008. Both surgeries were performed by Arliss at The Kingston Hospital and claimant was then returned to the Coxsackie infirmary.
Affidavit of Jon S. Miller, MD, sworn to Mar. 10, 2014, [Defendant's Motion to Dismiss, Exhibit G], ¶ 5.
Miller states that Dr. Arliss was known to him as a competent and able surgeon and he (Miller) did not have any "reason to doubt the competency of Dr. Arliss and [he] deferred to Dr. Arliss as to the need for surgery and the extent of that surgery." Miller indicates that as claimant's primary care provider, he provided the necessary medication after each surgery and scheduled an X ray between the dates of the two surgeries. He denies participation in either examining patients at the DOCCS orthopedic clinic or playing any role during surgery. Miller opines that claimant understood the use of sick call to access treatment at the facility and also understood the distinction between the care he could be provided at the facility, and the need for specialists in certain circumstances. Miller indicates that claimant signed the agreement to receive specialty care outside of the facility.
Id., ¶ 6.
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Defendant has included copies of claimant's medical records maintained by both DOCCS and The Kingston Hospital. These records include copies of the Contract for Specialty Care Appointment for both orthopedic appointments held at Sullivan. In these contracts, claimant agreed with the recommendation by Miller that claimant needed specialty care and that if a referral was made, claimant was responsible to keep all appointments made. If claimant withdrew his consent to the contract more than five days after its execution or if he failed to keep a scheduled appointment, he would be subject to discipline for failure to follow a direct order.
Based upon the evidence submitted, it is clear that Arliss was not an employee or agent of DOCCS, the surgeries took place at a medical facility not owned or controlled by defendant, and no prison employees were involved in the surgeries. Accordingly, defendant has established that Arliss was an independent contractor and that the State is entitled to judgment as a matter of law (see Rivers, 159 AD2d at 789; Garofolo v State of New York, UID No. 2013-044-514 [Ct Cl, Schaewe, J., May 9, 2013; Cora v State of New York, UID No. 2011-015-267 [Ct Cl, Collins, J., Oct. 31, 2011]).
The burden now shifts to claimant to raise a triable issue of fact on the question of whether claimant could have reasonably believed that Arliss was acting on behalf of defendant (see Soltis v State of New York, 172 AD2d 919 [3d Dept 1991]; Simmons v State of New York, 12 Misc 3d 1197[A], 2006 NY Slip Op 51614[U] [Ct Cl 2006]), thus creating the possibility of liability due to ostensible agency, or agency by estoppel. "The applicability of the doctrine depends upon whether the plaintiff could have reasonably believed, based upon all of the surrounding circumstances, that the treating physician was provided by . . . defendant . . . [and] was otherwise acting on the defendant's behalf" (Soltis, 172 AD2d at 920).
Claimant relies on his testimony at an examination before trial submitted as Exhibit E to defendant's motion. At the deposition, claimant testified that he initially injured his wrist in 1984 while incarcerated at Clinton Correctional Facility. He fractured a small bone in his right wrist which required surgery to insert a screw into the bone to hold it in place and keep his wrist from bending all the way back. Claimant stated that he did not have any problems with his wrist again until approximately 2007 when he reinjured it at Coxsackie while closing a window. Claimant indicated that he went to emergency sick call and had an X ray which revealed that the screw had slipped out of the bone.
Claimant stated that Dr. Miller told him that he need to see a surgeon. Claimant said he went to the orthopedic clinic at Sullivan Correction Facility (Sullivan) where Dr. Arliss examined him. Claimant indicated that Arliss said he would take out the old screw and replace it with a new screw. Claimant stated that surgery took place at The Kingston Hospital, but he was taken back to Coxsackie as soon as he was able to use the bathroom. He stayed in the infirmary for a few days, then went back to his cell block. Claimant stated that the week after surgery, he was attending sick call almost every day because he was in so much pain. He indicated that Dr. Miller reviewed the medical records and stated that Arliss had ordered no physical therapy or follow-up for six months. Claimant stated that approximately six weeks after surgery, he returned to Sullivan for Arliss to remove the cast. At that time, Arliss told claimant that he (Arliss) had to put a round plate with four screws into his hand and that it would take approximately six months to heal. Claimant stated that while he was waiting to be seen by Arliss, he encountered several inmates who informed him that Arliss was operating on them for a second or third time. Claimant opined that Arliss was not performing surgeries correctly.
Claimant said that after six months had passed, Miller ordered an X ray and determined that the head of one of the new screws had separated inside the plate and claimant would again need an orthopedic consultation. Claimant stated that he told his wife that he did not want Arliss to touch him again. Claimant believed that his wife then spoke with a Senior Correction Counselor who assured her that Arliss would not be performing the second surgery. Claimant was then sent to Sullivan for a consultation and again saw Arliss. Claimant said he told Arliss he didn't want him (Arliss) to touch his hand and Arliss responded that he probably would not be performing the second surgery as there were other people available. Claimant stated that the second surgery was scheduled for October 20,2008 and he was again taken to The Kingston Hospital. Claimant indicated that he had already received some medication, but was coherent enough to realize that the staff had shaved his left hand and were marking it for surgery. He was able to inform them the operation was supposed to be on his right hand. At that point, Arliss arrived and claimant told him that he (Arliss) was not to perform the surgery. Arliss allegedly indicated that no one else was available to perform the surgery. Claimant stated that he passed out and later woke up to discover that Arliss had performed the surgery. Claimant again was returned to the Coxsackie infirmary where he spent a few days before being released back to his cell block.
Claimant indicated that at some point after the second surgery, he spoke to a correction officer who was in the operating room during that surgery. The officer apparently told claimant that Arliss tried to get out whatever he put in claimant's wrist the first time, but he was not successful. Claimant indicated that the officer also stated that Arliss fused a second metal plate over the first plate. Claimant stated that he saw Arliss one time after the second surgery to have his cast removed and they exchanged heated words, with claimant accusing Arliss of negligently performing the surgery. Claimant indicated that his wrist is now completely immobile as a result of the second surgery.
Claimant's counsel argues that based upon the circumstances present, claimant could have reasonably believed that Arliss was acting on behalf of defendant. However, nowhere in the testimony does claimant actually state that he thought Arliss was a DOCCS employee or that he was acting on DOCCS' behalf. Further, claimant has not provided his own affidavit setting forth such a belief in opposition to this motion. The Court finds that claimant has failed to meet his burden of creating a question of fact as to whether he reasonably believed that Arliss was acting on behalf of defendant (see Soltis, 172 AD2d at 920; Garofolo, UID No. 2013-044-514). Accordingly, defendant's motion for summary judgment dismissing the tenth, eleventh, twelfth, thirteenth and fourteenth causes of action alleging malpractice is also granted.
Notwithstanding Arliss' status as an independent contractor, defendant could potentially be liable for its negligence in selecting, instructing or supervising him (Kleeman, 81 NY2d at 274; Hesch v Seavey, 188 AD2d 808 [3d Dept 1992]). In his first cause of action, claimant alleges that defendant was negligent in hiring Arliss to treat any prison inmate, including claimant. The second cause of action alleges that defendant failed to verify that Arliss was capable of properly performing the surgery on him. Claimant's sixth cause of action asserts that defendant was negligent in allowing Arliss to perform the second surgery after the first surgery was not successful. Defendant has provided evidence that Arliss was known to be a competent and able surgeon and that Miller deferred to Arliss' expertise in both the need for and the extent of any surgery recommended for claimant. Accordingly, defendant has met its burden of establishing that it was not negligent in referring claimant to Arliss or in allowing Arliss to perform either of the surgeries on claimant and therefore is entitled to dismissal of the first, second and sixth causes of action. Claimant has failed to provide any admissible evidence to show that defendant knew or should have known that Arliss was not competent as a surgeon in general or with respect to performing the specific surgeries on claimant. Accordingly, the first, second, and sixth causes of action are also dismissed.
The fifteenth and sixteenth causes of action are merely recitations of damages purportedly suffered as a result of defendant's and Arliss' conduct and are accordingly dismissed. Because claimant's personal injury causes of action have all been dismissed, the seventeenth cause of action containing claimant Rose Suba's derivative claim is also dismissed (see Millington v Southeastern El. Co., 22 NY2d 498, 508 [1968]; Clark v Campbell, 167 AD2d 750 [3d Dept 1990]).
In conclusion, claimant's seventh cause of action alleging battery is dismissed as untimely. The first, second, and sixth causes of action alleging defendant's negligence in referring claimant to Arliss and allowing him to perform both the first and second surgeries on claimant are dismissed. Further, the third, fourth, fifth, eighth and ninth causes of action labeled as negligence but pertaining to the rendition of medical treatment are dismissed as duplicative of the malpractice causes of action. Moreover, because Arliss was an independent contractor, the tenth, eleventh, twelfth, thirteenth and fourteenth causes of action alleging that defendant is liable for Arliss' alleged medical malpractice are also dismissed. The fifteenth and sixteenth causes of action are not independent causes of action, but are only statements of damages allegedly suffered and are therefore dismissed. As no personal injury causes of action remain, the seventeenth cause of action for loss of consortium is also dismissed.
Defendant's motion for summary judgment is granted. Claim No. 117559 is dismissed in its entirety.
September 3, 2014
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on defendant's motion:
1) Notice of Motion filed on March 10, 2014; Affirmation of Belinda A. Wagner, Assistant Attorney General, dated March 10, 2014, and attached exhibits. Memorandum of Law dated March 10, 2014.
2) Affirmation in Opposition of Anthony C. Ofodile, Esq., dated May 9, 2014.
Filed papers: Claim filed on October 20, 2009; Verified Answer filed on November 18, 2009.