Opinion
# 2014-039-415 Claim No. 119310 Motion No. M-84538
06-11-2014
MICHAEL BRUNO v. STATE OF NEW YORK
Michael Bruno, pro se Hon. Eric T. Schneiderman Attorney General of the State of New York By: Douglas R. Kemp Assistant Attorney General
Synopsis
Defendant's motion for summary judgment is denied. Claimant alleges medical malpractice and negligence arising from medical treatment he received while in the custody of DOCCS. The physician's affidavit submitted by defendant in support of summary judgment is conclusory and fails to provide a specific factual basis for the opinions therein.
Case information
| UID: | 2014-039-415 |
| Claimant(s): | MICHAEL BRUNO |
| Claimant short name: | BRUNO |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119310 |
| Motion number(s): | M-84538 |
| Cross-motion number(s): | |
| Judge: | James H. Ferreira |
| Claimant's attorney: | Michael Bruno, pro se |
| Defendant's attorney: | Hon. Eric T. Schneiderman Attorney General of the State of New York By: Douglas R. Kemp Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 11, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, then an inmate proceeding pro se, filed this claim with the Chief Clerk of the Court of Claims on December 27, 2010. Claimant alleges therein that he did not receive adequate medical care with respect to leg pain and/or peripheral vascular disease that he suffered between 2005 and 2008 while he was in the custody of the Department of Corrections and Community Supervision (hereinafter DOCCS) at Bare Hill Correctional Facility (hereinafter Bare Hill). Specifically, claimant alleges that he made numerous complaints of leg pain to his treating physicians and nurses at Bare Hill, as well as to medical staff at Greene Correctional Facility while claimant was on an outside court trip there, but he "was never diagnosed, evaluated or treated for any complaints [he] made about [his] legs" (Claim ¶ 16). Claimant alleges that, in May 2008, he was transferred to Wallkill Correctional Facility, where, in September 2008, he was finally treated for his leg pain; the treatment included three bypass surgeries on his legs to correct "blockages that ha[d] accumulated" (Claim ¶ 7). Claimant alleges that he has permanent injuries as a result of the delay in treatment.
Since filing this claim, claimant has been released from State custody.
Claimant further alleges that he suffered from repeated Methicillin-resistant Staphylococcus aureus (hereinafter MRSA) bacterial skin infections while at Bare Hill and that the medical staff negligently failed to take reasonable measures to respond to and prevent outbreaks of such infections at the facility (Claim ¶ 8). He alleges that lack of blood flow to his legs affected his ability to fend off these infections and that the infections "ha[ve] the ability to cause inflamation and scarring of the arteries of the legs and can block, narrow, or weaken arteries" and were "a contributing factor and part of the proximate cause of [c]laimant's injuries" (Claim ¶ 21).
Issue was joined, and defendant now moves for summary judgment dismissing the claim pursuant to CPLR 3212. Claimant opposes the motion, and defendant has submitted a reply affirmation.
Summary judgment is a drastic remedy which should only be granted where there are no doubts as to the existence of a triable issue of fact (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept 2011]). "[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 demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Baird v Gormley, 116 AD3d 1121, 1122 [3d Dept 2014]). If the proponent's burden is met, "the burden shifts to the party opposing the motion for summary judgment 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 at 324; Town of Kirkwood v Ritter, 80 AD3d 944, 945-946 [3d Dept 2011]). In considering a summary judgment motion, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d at 959; see Winne v Town of Duanesburg, 86 AD3d 779, 780-781 [3d Dept 2011]).
The allegations in this claim sound in medical malpractice and negligence.
Specifically, claimant's allegations with respect to the medical treatment that he received at Bare Hill sound in medical malpractice, while his allegations with respect to DOCCS' response to MRSA outbreaks at the facility sound in simple negligence or medical negligence (see Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] ["a claim sounds in medical malpractice when the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician. By contrast, when the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [provider's or facility's] failure in fulfilling a different duty, the claim sounds in negligence"] [internal quotations and citations omitted]).
"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]; accord Auger v State of New York, 263 AD2d 929, 931 [3d Dept 1999]; see Kagan v State of New York, 221 AD2d 7, 11 [2d Dept 1996]). "To succeed on a claim for negligence or medical malpractice [at trial,] it is incumbent upon the claimant to come forth with evidence of a breach in prison protocols or other evidence of a deviation from the appropriate standard of medical care" (Norris v State of New York, UID No. 2011-009-011 [Ct Cl, Midey, Jr., J., Apr. 4, 2011]; see Trottie v State of New York, 39 AD3d 1094, 1095 [3d Dept 2007]). "Where such a breach or deviation is established, liability does not attach absent competent expert evidence that the negligence or malpractice was a proximate cause of the inmate's ensuing medical problems" (Norris v State of New York, UID No. 2011-009-011 [Ct Cl, Midey, Jr., J., Apr. 4, 2011]; see Trottie v State of New York, 39 AD3d at 1095; Lowe v State of New York, 35 AD3d 1281, 1282 [4th Dept 2006]). Therefore, in order to meet its initial burden on its motion for summary judgment, defendant is required to demonstrate as a matter of law that it did not breach its duty of care to claimant, or that any breach of its duty was not the proximate cause of claimant's alleged injuries (see e.g. Flynn v City of New York, 94 AD3d 537, 537 [1st Dept 2012]). Specifically, in order to meet its initial burden on a summary judgment motion in a medical malpractice action, "defendant[] must 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" (Cole v Champlain Val. Physicians' Hosp. Med. Ctr., 116 AD3d 1283, 1285 [3d Dept 2014]; see Doucett v Strominger, 112 AD3d 1030, 1031 [3d Dept 2013]).
In support of its motion, defendant has submitted copies of the pleadings as well as the affidavit of Brian Connolly, M.D., a board-certified physician licensed to practice medicine in New York. Dr. Connolly is employed by DOCCS as Facility Health Services Director at Bare Hill; he was one of claimant's treating physicians at Bare Hill, and the claim contains allegations of medical malpractice against him. Dr. Connolly states that attached to his affidavit is a "true and correct" copy of claimant's medical records for the period between September 2005 and April 2009 (Affidavit of Brian Connolly ¶ 5, Exhibit A).
In the affidavit, Dr. Connolly states that he reviewed the claim and claimant's medical records from September 2005 through April 2009 and provides a "synopsis" of the relevant portions of claimant's medical records (Affidavit of Brian Connolly ¶ 6). With respect to the MRSA infections, Dr. Connolly states that MRSA "has been an issue in hospital and health care settings for decades" and "is not a problem unique to correctional facility settings and is widely present in the community" (id. ¶ 7). He further states that "DOCCS medical staff and personnel regularly and routinely clean the medical unit with antibacterial products, in an effort to minimize the risk of exposure" and that, despite the additional efforts of DOCCS to ensure that inmates practice good personal hygiene and institutional cleanliness, inmates "frequently fail to wash their hands or clean surfaces between uses," which transfers infection (id. ¶¶ 10-11). He opines, based upon his professional education, experience and expertise in the field of medicine, "DOCCS took all appropriate steps to both minimize the risk of MRSA infections and treat claimant's MRSA infections" (id. ¶ 14).
Dr. Connolly further states:
"there is absolutely no relationship between MRSA skin infections and peripheral vascular disease or coronary artery disease. Significant risk factors for these diseases are smoking and drug abuse, both of which the claimant had. Claimant received appropriate care for his complaints of leg and chest pain, each of which was treated seriously and with appropriate treatment, as noted in his medical records" (id. ¶ 12).
He opines, "to a reasonable degree of medical certainty, that claimant received appropriate care while in the custody of DOCCS, and that DOCCS medical personnel did not deviate from the appropriate standard of care in this case" (id. ¶ 4). He states that claimant's treatment "conformed to all reasonable and acceptable standards of the medical profession" (id. ¶ 15).
The Court finds that defendant has failed to meet its burden of establishing its entitlement to judgment as a matter of law. Initially, the Court notes that the party moving for summary judgment must submit evidence in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Overocker v Madigan, 113 AD3d 924, 925 [3d Dept 2014]). Here, the medical records attached to Dr. Connolly's affidavit are not in admissible form, as they are not certified and defendant did not offer an affidavit establishing their authenticity (see CPLR 4518 [a], [c]; Thomas v Laustrup, 21 AD3d 688, 690 [3d Dept 2005]; McFadden v State of New York, UID No. 2004-032-049 [Ct Cl, Hard, J., June 16, 2004]). Thus, the medical records are without probative value, and the Court has not considered them.
In his affidavit, Dr. Connolly states that the attached medical records are a "true and correct copy" of claimant's medical records (Connolly Affidavit ¶5). The Court finds this statement, without more, insufficient to establish the authenticity of the documents (see CPLR 4815 [a], [c]; compare Education Plus, Inc. v Glasser, 112 AD3d 1125, 1126 [3d Dept 2013]).
The Court also finds Dr. Connolly's affidavit insufficient to sustain defendant's burden on its motion. The affidavit of a defendant physician " 'may be sufficient to establish a prima facie entitlement to summary judgment where the affidavit is detailed, specific and factual in nature and does not assert in simple conclusory form that the physician acted within the accepted standards of medical care' " (Suib v Keller, 6 AD3d 805, 806 [3d Dept 2004], quoting Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [3d Dept 2001]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Here, Dr. Connolly has offered only conclusory opinions with respect to claimant's allegations of negligence and medical malpractice. He summarizes what he found to be the "relevant portions" of claimant's medical records (Connolly Affidavit ¶ 6), but does not provide any further explanation of the treatment that claimant received and fails to articulate how he came to the conclusion that the treatment claimant received, as summarized, was appropriate and complied with acceptable standards of medical care. Significantly, Dr. Connolly offers no specific factual support for his conclusion that "[c]laimant received appropriate care for his complaints of leg and chest pain, each of which was treated seriously and with appropriate treatment" (id. ¶ 12). Similarly, Dr. Connolly offers no specific factual support for his conclusions with respect to DOCCS' response to MRSA infections at Bare Hill. The Court finds Dr. Connolly's general statements that "DOCCS medical staff and personnel regularly and routinely clean the medical unit with antibacterial products, in an effort to minimize the risk of exposure" and that "DOCCS took all appropriate steps to both minimize the risk of MRSA infections and treat claimant's MRSA infections" insufficient to establish that defendant did not breach any duty to claimant as a matter of law (Connolly Affidavit ¶¶ 10, 14). Dr. Connolly also fails to set forth what the appropriate and accepted standard of care would be with respect to claimant's complaints of leg pain, his peripheral vascular disease or his MRSA infections. Thus, the Court finds that Dr. Connolly's affidavit is insufficient to establish defendant's entitlement to judgment as a matter of law (see LaFountain v Champlain Val. Physicians Hosp. Med. Ctr., 97 AD3d 1060, 1061-1062 [3d Dept 2012]; Williams v State of New York, UID No. 2007-044-588 [Ct Cl, Schaewe, J., Nov. 15, 2007]; Bastian v State of New York, UID No. 2007-044-540 [Ct Cl, Schaewe, J., July 5, 2007]). In light of this finding, it is unnecessary to address the sufficiency of claimant's opposition papers (see LaFountain v Champlain Val. Physicians Hosp. Med. Ctr., 97 AD3d at 1062).
Based upon the foregoing, it is ordered that defendant's motion (M-84538) is denied in its entirety. Following the filing of this Decision and Order, the Court will contact the parties to set up a conference to schedule trial in this matter.
June 11, 2014
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion dated January 17, 2014; 2. Affirmation in Support of Motion by Douglas R. Kemp, AAG, dated January 17, 2014, with attached exhibits; 3. Affidavit in Support by Brian Connolly, M.D., sworn to January 16, 2014, with attached exhibit; 4. "Affirmation" in Opposition to Motion by Michael Bruno, dated February 6, 2014, with attached exhibits; and 5. Reply Affirmation by Douglas R. Kemp, AAG, dated February 12, 2014.