Opinion
# 2019-044-507 Claim No. 125001 Motion No. M-92095
02-07-2019
MARTIN J. ROTHSCHILD v. THE STATE OF NEW YORK
CHERUNDOLO LAW FIRM, PLLC BY: Cristen M. Mendoza, Esq., of counsel HON. LETITIA JAMES, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General Aaron J. Marcus, Assistant Attorney General
Synopsis
Court granted defendant's motion for partial summary judgment regarding conduct of outside doctor in former inmate's medical malpractice claim.
Case information
| UID: | 2019-044-507 |
| Claimant(s): | MARTIN J. ROTHSCHILD |
| Claimant short name: | ROTHSCHILD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125001 |
| Motion number(s): | M-92095 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | CHERUNDOLO LAW FIRM, PLLC BY: Cristen M. Mendoza, Esq., of counsel |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General Aaron J. Marcus, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 7, 2019 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed a "Notice of Claim" setting forth causes of action in negligence, medical malpractice, and/or medical negligence which allegedly accrued 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 partial summary judgment dismissing the claim with respect to conduct by Dr. Alan Angell, Dr. Irwin Lieb, Arnot Ogden Medical Center (AOMC) and/or Adirondack Surgical Group. Claimant opposes the motion.
Notwithstanding claimant's use of incorrect terminology for practice in the Court of Claims, the Court will refer to the Notice of Claim as the claim throughout this Decision and Order.
The Court notes that claimant has commenced actions in State Supreme Court and Federal District Court which also arose from the treatment that he received in custody (Rothschild v Braselmann, 157 AD3d 1027 [3d Dept 2018]).
At the beginning of claimant's treatment, Angell was a part owner of Elmira Urological Associates (Elmira Urological), which was thereafter purchased by Arnot Health which apparently operates AOMC (see infra).
The Court notes that defendant's motion papers refer to attached Exhibits A-F which were not included with the motion filed with the Court. By letter dated August 29, 2018, the Court adjourned this motion without date and requested that defendant supply the missing exhibits. Because Exhibits D, E, and F appeared to be portions of the deposition testimony of claimant, Angell, and Lieb, respectively, the Court directed defendant to provide the entire transcripts of these depositions. Counsel for defendant subsequently submitted a CD containing the Exhibits A-F (D,E, and F are the complete transcripts of the deposition testimony, as requested) as well as Exhibits G and H which consist of documentary evidence. The motion papers filed with the Court do not specifically refer to Exhibits G and H. It appears that these two exhibits were included in the motion papers served on claimant, as claimant's counsel has addressed their significance in the opposition papers. Accordingly, the Court will consider the exhibits in determining this motion.
Defendant, as the proponent of a summary judgment motion, 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).
Defendant contends that both Angell and Lieb (as well as their respective practice groups) are independent contractors under contract to provide speciality services to DOCCS and therefore DOCCS is not vicariously liable for their conduct. Defendant further argues that the theory of apparent or ostensible agency does not apply because DOCCS did not engage in any conduct which would indicate that Angell or Lieb were acting on its behalf.
In support of this motion, defendant has submitted the deposition testimony of Alan Angell, a urologist. Angell testified that he was previously a part owner of Elmira Urological from 1989 through February 2014, when it was purchased by Arnot Health. Angell stated that during his employment with both Elmira Urological and Arnot Health, he has provided contract services for DOCCS. He did not know whether the contract was with him personally or whether it was with his employers. In any event, Angell noted that he would hold a clinic at Elmira Correctional Facility (Elmira) approximately once a month. At the clinics, Angell would examine and provide consultations for inmates who had urological issues.
Angell stated that on December 11, 2013, claimant had been treated for urine retention at AOMC Emergency Room. Angell indicated that claimant had been added to his schedule at Elmira's clinic as an urgent case on December 13, 2013. Angell testified that claimant still had the catheter which had been inserted at the Emergency Room, and Angell recommended that claimant keep it in place until Angell could perform a cystoscopy to evaluate whether he needed surgery. Angell performed a cystoscopy on January 3, 2014 at AOMC and determined that claimant should undergo a transurethral resection of the prostate (TURP). He explained that during the TURP he would remove some of the prostate tissue which appeared to be blocking the urethra and causing claimant to retain urine.
Angell testified that on January 17, 2014, claimant's catheter came out and the medical personnel at Elmira could not reinsert it. As a result, claimant was transported to Elmira Urological where Angell's partner inserted another catheter and drained 300 milliliters of urine. On February 7, 2014, Angell performed the TURP at AOMC. On February 18, 2014, claimant returned to Elmira Urological to have a trial void where the catheter was removed to see if he could void on his own. He was unable to do so and the catheter was reinserted. Angell noted that shortly thereafter, claimant was transferred to Clinton Correctional Facility (Clinton) and DOCCS apparently made arrangements for him to follow up with Dr. Lieb. Nevertheless, it appears that even though claimant was residing at Clinton, he was transported back to Elmira to see Angell on June 13, 2014.
It is also possible that Angell saw claimant again on October 2, 2014.
Irwin Lieb, a urologist, testified at an examination before trial that he has worked at Adirondack Surgical Group since 1987. He stated that the Group has a contract with defendant to provide clinical services at Upstate Correctional Facility (Upstate). He noted that inmates with urological conditions would be brought to Upstate from several different facilities in the same hub in order to be evaluated. He explained that the general procedure was for him to meet with the inmate individually in an examination room at Upstate, review medical information (if any), take a verbal history from the inmate, and if appropriate perform an examination. Lieb indicated that after the visit, he would write a consultation report providing his recommendation for any medications or ongoing treatment that he deemed appropriate. He described the consultation as a written report about the patient from an expert to a treating physician who would then determine whether to follow through with the suggestions. Lieb stated that a reexamination or follow up would take place at the Upstate clinic. However, if an inmate needed a procedural intervention it would be performed either at the Adirondack Surgical Group's office or at Adirondack Health (also known as Adirondack Medical Center).
With respect to claimant, Lieb indicated that he saw him at the Upstate clinic on March 20, 2014 and suggested that he have an outpatient cystoscopy. Lieb stated that claimant was scheduled to have the cystoscopy on April 23, 2014 at Adirondack Medical Center. However, when claimant arrived at the Medical Center, he refused to go through with the procedure. Lieb noted that he had intended to teach claimant how to perform a clean intermittent self-catheterization at the time he performed the cystoscopy. Lieb indicated that although he saw claimant in passing at the hospital, there was no formal patient visit that day. Lieb stated that claimant was transported to his office on November 13, 2014. Lieb again recommended a cystoscopy as well as a renal ultrasound, and also suggested that claimant learn how to perform a self-catheterization.
Lieb explained that an intermittent self-catheterization requires the patient to insert a fresh catheter into his or her bladder, drain the bladder and then remove the catheter. He indicated that the procedure should be performed five or six times a day.
Lieb said that DOCCS would occasionally request that he examine an inmate in the office, usually in between his scheduled days at the Upstate clinic.
Defendant has also included documentary evidence in support of this motion. Defendant submitted documents entitled General Consent and Financial Agreement, HIPAA Acknowledgment and Consent, and Consent for Authorization of Operative Procedure, Invasive Procedure /or Transfusion. These documents were all on letterhead of Arnot Health and/or AOMC and pertain to both claimant's December 11, 2013 Emergency Room visit and the subsequent cystoscopy performed by Angell. Defendant also submitted a two-page progress note for claimant's November 13, 2014 visit with Lieb.
Defendant's Motion for Partial Summary Judgment, Exhibit G.
Defendant's Motion for Partial Summary Judgment, Exhibit H, at 2-3. Defendant has additionally submitted a copy of a document entitled Pre-Procedure Patient Profile from Adirondack Medical Center (id. at 1). However, this document has no relevance, as there is no indication regarding what procedure was to be performed, when it would be performed, or when the document was executed.
"Whether the state is vicariously liable for the medical malpractice of independent contractors in Court of Claims actions is determined by a theory of agency or control in fact, or apparent or ostensible agency" (Rothschild, 157 AD3d at 1029 [internal quotation marks and citations omitted]). "The issue of agency or control in fact necessarily focuses on the relationship between the . . . doctor[] [and DOCCS] . . . not [the] relationship . . . [between the doctor and claimant]" (Kavanaugh v Nussbaum, 71 NY2d 535, 547 [1998]) .
Both Angell and Lieb testified that they provided medical services to inmates such as claimant pursuant to a contract with DOCCS. Further, each doctor reviewed claimant's records and test results, examined him, and recommended a course of treatment which included certain tests or procedures. Notably, Angell completed both the cystoscopy and TURP at AOMC (a non-DOCCS facility) without the assistance of any DOCCS staff. Additionally, Lieb specifically explained that he could only provide recommendations and not order any tests or prescriptions himself as those items needed to be handled by DOCCS personnel. He further indicated that any procedure would take place at Adirondack Medical Center or Adirondack Surgical Group (his office) rather than at a correctional facility. Although DOCCS had the authority as the treating entity to accept or reject Angell's and/or Lieb's recommendations, there is no evidence to support the inference that DOCCS exercised any control over their actual treatment of claimant. The Court finds that defendant has submitted admissible evidence that Angell and Lieb were independent contractors who were not under DOCCS' control.
Nevertheless, DOCCS could still be vicariously liable for Angell's or Lieb's conduct pursuant to the theory of apparent or ostensible agency (Kavanaugh, 71 NY2d at 547). "The state is vicariously liable for the malpractice of an independently contracted doctor when an inmate has reasonably relied upon the appearance of the doctor's authority created by the words or conduct of DOCCS. . . . Essential to such a claim is the existence of words or conduct on the part of DOCCS that give rise to the appearance and belief that the doctors were acting on its behalf" (Rothschild, 157 AD3d at 1029 [internal quotation marks and citations omitted]). "The applicability of the doctrine depends upon whether the [claimant] could have reasonably believed, based upon all of the surrounding circumstances, that the treating physician was provided by [DOCCS] . . . or was otherwise acting on [DOCCS] behalf" (Soltis v State of New York, 172 AD2d 919, 920 [3d Dept 1991]).
In this instance, both Angell and Lieb first examined claimant at clinics held at Elmira and Upstate, respectively, which were attended by inmates from several different correctional facilities. However, the procedures performed on claimant by Angell or his partner - the cystoscopy, TURP, voiding trial, and reinsertion of the catheter - all took place outside the correctional facility and did not involve personnel employed by DOCCS. Moreover, claimant signed a consent form for the cystoscopy which clearly did not contain any reference to DOCCS. With respect to his contact with Lieb, claimant was transported outside the correctional facility to Adirondack Medical Center for a cystoscopy (which he refused) as well as to Adirondack Surgical Group for an office visit/examination with Lieb. The Court finds that based upon the surrounding circumstances, claimant could not have reasonably believed that either Angell or Lieb were either employed by or acting on behalf of DOCCS. Because defendant has set forth evidence that neither Angell nor Lieb were under DOCCS' control and that the theory of apparent or ostensible agency does not apply, defendant has met its initial burden of establishing its prima facie right to judgment as a matter of law.
The burden now shifts to claimant to submit admissible evidence sufficient to create a material question of fact. As an initial matter, claimant argues that defendant's failure to submit the actual written contracts between DOCCS and Angell (or his practice) and DOCCS and Adirondack Surgical Group, as well as its failure to offer admissible evidence of the contractual terms and/or duties, is fatal to a finding that the doctors are independent contractors. This contention is not persuasive. As set forth previously herein, both doctors assessed claimant's medical condition, and as specialists made independent recommendations which DOCCS could either accept or reject. There is no evidence that DOCCS did or even could direct the manner in which they assessed or otherwise treated claimant. Accordingly, claimant has not created any questions of fact with respect to the issue of agency or control in fact.
Claimant argues that there are questions of fact as to whether the theory of apparent or ostensible agency applies and has submitted his affidavit in opposition to the motion. Claimant states that he first met with Angell in the Elmira medical unit two days after he was treated in the Emergency Room at AOMC. Claimant next saw Angell on January 3, 2014 at AOMC where Angell performed a cystoscopy and explained that claimant would require a TURP procedure. Claimant notes that the TURP was performed on February 7, 2014 at AOMC.
Claimant states that during mid-February 2014, Elmira medical personnel conducted a follow-up voiding trial in conjunction with Angell. Claimant asserts that he spent the night in the infirmary at Elmira. The following morning the staff recorded the amount of water he was required to continuously drink. He was later taken from the facility to Angell's office where he underwent a sonogram to determine how much urine he had retained. The next time claimant saw Angell was at Elmira in June of 2014. Claimant states that although he eventually learned that Angell maintained a private medical practice, he also believed that Angell was acting under DOCCS' control through an employment/contractual relationship.
Sometime after the voiding trial, claimant had been transferred to Clinton. Thereafter, he was transported to see Angell at Elmira by prison van, with stops at both Downstate Correctional Facility and Five Points Correctional Facility. --------
Claimant asserts that while he was residing at Clinton, he was transported to Upstate and met with Lieb on March 20, 2014 in the facility's medical unit. He indicates that he and several other inmates waited in a large room and were called individually to see Lieb. He says that Lieb was presented as the DOCCS' urologist for the region which included Clinton. Claimant notes that on April 23, 2014, he was taken on a medical trip to an outside facility and informed that he would be seeing Lieb. A nurse gave him a consent form for a cystoscopy, but he refused to sign it because no one (including Lieb) had given him any information as to why he was having the procedure. Claimant was returned to Clinton and required to sign a DOCCS Refusal of Medical Examination and/or Treatment Form. Claimant states that on November 13, 2014, he was transported from Clinton to see Lieb at an outside office. Claimant notes that on January 16, 2016, he was transported from Clinton with several other inmates to Upstate. He indicates that was his last visit with Lieb. Claimant states that even though he learned that Lieb maintained a private medical practice, he believed that Lieb was acting under DOCCS' control pursuant to some type of employment or contractual relationship.
Claimant acknowledges that Angell had an independent private medical practice, but states that he also believed that he was either employed by DOCCS or acting under its control. Angell performed two procedures on claimant in an outside medical facility, and claimant signed consents prepared on AOMC/Arnot Health letterhead. Moreover, although claimant was admitted to Elmira's infirmary to prepare for the voiding test, claimant was transported to Angell's private medical office for the actual test. In light of these facts, the Court finds claimant's belief that Angell was an employee or otherwise under DOCCS' control to be unreasonable as a matter of law.
Although claimant has also stated that he was informed Lieb was a DOCCS urologist, he fully acknowledges being aware that Lieb had a private medical practice and that his (claimant's) cystoscopy would have been performed at an outside medical facility. Moreover, the DOCCS Refusal of Medical Examination and/or Treatment Form which claimant signed does not indicate who was to have administered the examination or treatment. Rather, it solely memorializes the fact that claimant refused to undergo the cystoscopy. Under these circumstances, the Court finds that claimant's belief that Lieb was an employee or acting on DOCCS' behalf is not reasonable as a matter of law. Claimant has failed to set forth admissible evidence sufficient to create a question of fact as to the theory of apparent or ostensible agency.
In conclusion, defendant has set forth admissible evidence that Doctors Angell and Lieb were independent contractors who were not under DOCCS' control. Moreover, based upon all of the surrounding circumstances, claimant could not have reasonably believed that either Angell or Lieb were employed by or acting on behalf of DOCCS. Accordingly, defendant's motion for partial summary judgment is granted to the extent that any cause of action for negligence, medical malpractice and/or medical negligence based upon the conduct of Dr. Angell, Dr. Lieb, and/or their respective medical practices is hereby dismissed.
February 7, 2019
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 March 26, 2018; Affirmation of Joseph F. Romani, former Assistant Attorney General (AAG), dated March 26, 2018; Memorandum of Law dated March 26, 2018. 2) Affirmation in Opposition of Cristen M. Mendoza, Esq., dated June 18, 2018, and attached exhibits; Affidavit of Martin J. Rothschild, sworn to June 19, 2018; Memorandum of Law dated June 18, 2018. 3) The Court's letter to the parties dated August 29, 2018. 4) Cover letter of Aaron J. Marcus, AAG, dated September 6, 2018, and attached CD-R containing exhibits A - H. Filed Papers: Claim filed September 19, 2014; Verified Answer filed October 16, 2014.