Kagan v. State of New York ( 1996 )

Sullivan, J.

(dissenting in part). Inasmuch as the evidence in the record fails to support the majority’s conclusion that the claimant’s loss of hearing resulted from any act or omission of personnel at the Bedford Hills Correctional Facility (hereinafter Bedford Hills), I would reverse the judgment and dismiss the claim.

The claimant had been incarcerated at Bedford Hills since 1984 pursuant to a manslaughter conviction. In early 1988, she developed an ear infection which rapidly caused her to permanently lose the hearing in her right ear. She subsequently brought this claim to recover for her hearing loss, contending that she received inadequate medical care at the prison. Specifically, the claimant alleged that the staff at the facility failed to comply with her requests for extra blankets while she was housed in a mental health unit of the prison in December 1987, that prison employees delayed in producing her for nurse screening on January 4, 1988, that the nursing staff failed to provide her with immediate access to a physician on that date, and that prison personnel thereafter unduly delayed in procuring a hearing test for her.

The trial evidence demonstrated that on January 2, 3, and 4, 1988, the claimant, complaining of various symptoms, requested and received "nurse screening”, a process whereby inmates with health complaints are examined and evaluated by staff nurses, who then refer sufficiently serious cases to a physician on duty at the facility. The claimant was no stranger to the nurse screening procedure, having availed herself of visits to nurses on at least nine occasions in November and December 1987 alone for such maladies as constipation, nasal congestion, a splinter in her thumb, and a blister on her right foot. On January 2, 1988, the claimant complained of a sore throat and fever, and was called to nurse screening in the late afternoon. As is clearly demonstrated by the medical record of the visit, the examining nurse found that the claimant’s throat was red and that she had a temperature of 100.8 degrees. However, her throat did not contain any exudate and her glands were not swollen. Hence, a regimen of salt water gargles, throat lozenges, and Tylenol was prescribed. The claimant did not make any complaint about her ear on that date. Moreover, while the entry in the complainant’s medical record for that date contained a notation regarding follow-up by a physician, the notation was followed by the letters "PRN” (i.e., "whenever necessary”), thus indicating that the claimant should be seen by a physician if her condition worsened. The notation did not, as the claimant contends, require a doctor’s appointment or constitute an attempt to make such an appointment for the claimant. Indeed, the claimant herself testified that the examining nurse did not give her a doctor’s appointment, but instead told her to see the screening nurse on the following day.

On January 3, the claimant returned to nurse screening complaining of a sore throat. The examining nurse found that her throat was red, but that her temperature had dropped to 98 degrees. The claimant also contends that she complained of bleeding in her ear at this time, but an ear examination was in fact conducted on that date and her ears were found to be negative for any problems. Extra Strength Tylenol and fluids were prescribed. The claimant signed up for nurse screening the following day, complaining that her ear was bleeding. At approximately 2:30 p.m. on that date, she appeared for nurse screening based on this complaint. The examining nurse found a "[v]ery small amount” of blood in the claimant’s right ear canal, which the nurse believed might have resulted from a recent injury or from the claimant’s insertion of a foreign object into her ear. The medical record does not indicate that the claimant had any other physical complaint. The nurse inquired as to whether a doctor was on duty to see the claimant, but was advised that the physician on duty had left for the day. In the exercise of her medical judgment, the nurse then determined that while the condition of the claimant’s ear justified an examination by a doctor, it was not so urgently serious as to warrant calling in a physician for an immediate evaluation. Accordingly, the claimant was given a doctor’s appointment for the following morning. Unfortunately, the claimant’s condition rapidly worsened in the interim, and according to her own testimony, she lost the hearing in her right ear on that night. At approximately 7:30 a.m. on January 5, she complained of ear problems and began vomiting. The prison hospital facility was contacted immediately, and the claimant was called for treatment at 8:47 a.m. Although no escort officers were immediately available to bring her to the facility at that time due to their performance of other assignments, an officer was thereafter made available and escorted the claimant to the hospital facility at 10:28 a.m. She was examined by a physician who diagnosed her condition as an ear infection and prescribed antibiotics. The infection was cured, but the claimant suffered a loss of hearing in her right ear. Between January 25, 1988 and June 20, 1988, the staff at Bedford Hills obtained several consultations with specialists for the claimant and repeatedly attempted to schedule appropriate hearing tests for her. These efforts eventually resulted in the testing and evaluation of the claimant at Beth Israel Medical Center, where her hearing loss was determined to be permanent.

The Court of Claims found that the nurse who saw the claimant on January 4 made a sound medical judgment and was not guilty of ordinary negligence or malpractice in scheduling a doctor’s appointment for the claimant on the following day. However, the court determined that the State, through prison personnel, committed "ministerial negligence” in (1) failing to provide the claimant with adequate bedding material in December 1987, (2) failing to produce the claimant for the January 4 screening until approximately 2:30 p.m., when the on-duty physician had already left the premises, and (3) delaying approximately six months in obtaining appropriate hearing tests for the claimant. The court awarded total personal injury damages of $304,000, which included $500 for the claimant’s alleged discomfort resulting from the purportedly inadequate bedding, and $3,000 for the anxiety which the claimant presumably experienced while awaiting a hearing test. I cannot agree with the majority that this verdict is supported by the record.

The Court of Claims premised its finding of liability against the State exclusively upon a theory of ministerial negligence, a theory upon which the claimant and the majority also currently rely. However, as the State accurately contends, the actions complained of in this case were clearly discretionary rather than ministerial in nature. The Court of Appeals explained the difference between these two types of conduct in Tango v Tulevech (61 NY2d 34, 41) as follows: "discretionary * * * acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result”. The distinction is significant, since "when official action involves the exercise of discretion, the [public] officer is not liable for the injurious consequences of that action even if resulting from negligence or malice. Conversely, when the action is exclusively ministerial, the officer will be liable if it is otherwise tortious and not justifiable pursuant to statutory command” (Tango v Tulevech, supra, at 40).

None of the conduct which the claimant argues was the cause of her injury in this case involved a government officer’s failure to perform an official act which is ministerial in nature. Indeed, the claimant has failed to point to any compulsory requirement that inmates be provided extra blankets or hearing tests immediately upon demand, or that they are entitled to see a physician upon request without first undergoing evaluation by a nurse. Further, the nature and scope of the medical treatment accorded the claimant was clearly discretionary in nature, inasmuch as it obviously involved the exercise of reasoned judgment.

Moreover, contrary to the majority’s analysis, a review of the administrative protocols of Bedford Hills actually supports the conclusion that the care and treatment received by the claimant fell within accepted medical and legal standards. As the protocols make clear, the claimant was not entitled to see a physician upon request because Bedford Hills provided a nurse screening procedure for the evaluation of inmate health complaints. The majority states that prison personnel violated the protocol requiring that "[s]creening shall be readily available to all [inmates] and shall be conducted at the first screening session following the inmate’s request” (emphasis supplied). The majority apparently reasons that since the claimant was not examined by a nurse until approximately 2:30 p.m. on January 4, 1988, she was not produced for the first screening on that date. However, there is absolutely no evidence to support such a conclusion (indeed, there is not even any indication in the record that there was more than one screening session conducted on that date). The mere fact that the January 4 screening session was conducted in the afternoon hardly demonstrates a departure from the protocols or an undue delay in providing the claimant with medical attention. Rather, the documentary evidence and the claimant’s own testimony establish that nurse screening was conducted during the afternoon hours on other occasions, including January 2 and January 5, and one of the claimant’s own witnesses, a former fellow inmate, testified that inmates were routinely called to nurse screening in the afternoon or evening. Hence, there is simply no proof of a violation of this protocol.

The majority similarly finds that prison personnel failed to have the claimant’s medical record available during nurse screening, thereby violating the protocol requirement that "[t]he medical record of the inmate being screened * * * shall be available to the health care provider at the time of screening”. Again, the conclusion is belied by the record, since the nurse who conducted the critical screening on January 4 testified that the claimant’s medical record, complete with prior entries, was available at the time she saw the claimant. Additionally, the majority’s argument that the claimant’s injury was caused in part by a failure to transcribe information regarding her health problems from the sign-up sheet to the screening roster as required by the protocols is without merit. In fact, the roster for January 4 did contain the requisite notation, since the entry thereon precisely corresponded to the claimant’s subjective complaint on that date as well as to the screening nurse’s findings upon examining her. The majority correctly observes that the claimant’s January 3 health complaint (allegedly that her ear was painful and bleeding) was never transferred from the sign-up sheet to the screening roster for that date. However, the majority’s conclusion that a transfer of the notation "would have alerted the nurse to the seriousness of the claimant’s health problem and could have possibly resulted in earlier medical intervention” is unpersuasive. Indeed, notwithstanding the omission of the subjective complaint from the January 3 roster, the medical record from that date unequivocally demonstrates that the claimant’s ears were examined at that time and found to he negative for any symptoms. Hence, the omission of the claimant’s subjective complaint from the roster did not alter the examination performed by the nurse and quite simply could not have caused or contributed to her hearing loss.

The majority finds that the protocols were also violated by a failure of the security staff to transmit the claimant’s subjective complaints to medical personnel. However, the sole documentary evidence of such a failure consists of a log entry indicating that the claimant complained to a correction officer of problems with her ears on the morning of January 4. The entry did not state that medical personnel were notified, although it did observe that the claimant was already scheduled for nurse screening on that day. As previously noted, the claimant was seen by a nurse later that day and her condition was found not to require the immediate attention of a physician. Accordingly, any failure to comply with the notification protocol on this single occasion neither caused nor was even relevant to the claimant’s subsequent hearing loss. The only other documentation regarding the claimant’s complaints indicates that on the following day, she complained of ear problems and she began to vomit. The correction officer who observed her made a log entry and immediately contacted the medical staff, which in turn advised that the claimant would be seen by a doctor shortly thereafter (which she was). Hence, the notification protocol was followed on January 5.

The majority further reasons that since the claimant was not provided with a comprehensive hearing test until some six months following her hearing loss, prison personnel also violated a protocol requiring that outside medical testing for inmates be secured in a timely fashion. However, the record is replete with evidence demonstrating that different health care professionals at Bedford Hills obtained several otolaryngology consultations for the claimant and made repeated efforts to have her hearing tested at various outside facilities. Unlike the majority, I do not find that the delay in procuring the testing was occasioned by any breach of protocol on the part of Bedford Hills employees, but was instead attributable to scheduling difficulties and some apparent misunderstandings with the outside facilities. Moreover, it is quite clear that the testing delay did not in any manner contribute to or aggravate the claimant’s physical condition, inasmuch as the evidence overwhelmingly demonstrates that her hearing loss was permanent from the outset.

In view of the foregoing, the ministerial negligence theory advanced by the trial court and expanded upon by the majority is illusory. Indeed, even if one were to accept the premise that the protocols at Bedford Hills created strict ministerial duties on the part of prison personnel, the purported breaches of these protocols cited by the majority either never occurred or had absolutely no causational impact on the claimant’s condition.

The majority goes beyond the trial court’s determination and also finds the State responsible for the claimant’s injuries upon theories of ordinary negligence and medical malpractice. I disagree. It is undisputed that the State has a duty of ordinary care to provide reasonable and adequate medical care to prison inmates (see, Cauley v State of New York, — AD2d —, 1996 NY Slip Op 00737 [2d Dept, Feb. 5, 1996]; Marchione v State of New York, 194 AD2d 851; Matter of Farace v State of New York, 176 AD2d 1228; Rivers v State of New York, 159 AD2d 788; Powlowski v Wullich, 102 AD2d 575). Moreover, while foreseeability of injury does not determine the existence of the duty (see, Strauss v Belle Realty Co., 65 NY2d 399; Adams v Elgart, 213 AD2d 436), "the scope of the State’s duty is the standard formulation that '[t]he risk reasonably to be perceived defines the duty to be obeyed’ (Palsgraf v Long Is. R. R. Co., 248 NY 339, 344)” (Gordon v City of New York, 120 AD2d 562, 563, affd 70 NY2d 839 [emphasis supplied]).

Central to the majority’s ordinary negligence argument is the fact that prison personnel did not call the claimant to nurse screening on January 4 until approximately 2:30 p.m. However, this circumstance fails to establish any negligence on the part of the State. As previously noted, the performance of nurse screening during the afternoon did not constitute a departure from the standard procedure of the prison, and there was ample proof that such screening was often held in the afternoon hours. Hence, the mere fact that the claimant had sometimes been called to nurse screening in the morning failed to create a duty on the part of prison staff to conduct nurse screening during the morning hours every day or to call her at some earlier point on January 4. Similarly, there was no medical evidence that the claimant’s condition was so serious on that date as to warrant that she be produced for nurse screening at an earlier hour. Indeed, the majority concludes that the claimant’s condition became progressively worse from January 2 to January 4, but that conclusion is not supported by any objective medical documentation. Rather, the record demonstrates that although the claimant complained on January 3 that her ear was bleeding, she was examined on that date by a nurse who found that her temperature and her ears were normal. Hence, from all outward appearances, the claimant’s condition had markedly improved from the previous day when she had been running a fever of 100.8 degrees, and the objective medical documentation unequivocally refuted her subjective complaint that her ear was bleeding on January 3. Under these circumstances, her subjective complaint made to a correction officer on the morning of January 4 that her ear was bleeding did not establish the existence of a medical emergency requiring that she be brought to nurse screening before the scheduled hour, nor was the State negligent in failing to vary the screening schedule at the prison for her benefit.

Similarly, the actions of the examining nurse on January 4 failed to constitute either negligence or malpractice. In fact, the trial court expressly determined that the conduct of the nurse in making a doctor’s appointment for the claimant for the following day constituted "a medical judgment based upon the exercise of reasonable care”. There is no basis in the record for disturbing this conclusion, inasmuch as conflicting medical testimony was offered on the issue, and the court was entitled to accept the testimony of the State’s witnesses and to reject that of the claimant’s expert (see, Connolly v Pastore, 203 AD2d 412; Marchione v State of New York, 194 AD2d 851, supra). Inasmuch as there was competent evidence that the examination conducted by the nurse was medically appropriate and that her observation of a small amount of blood in the claimant’s ear did not mandate that the claimant be seen by a physician immediately, the record amply supports the court’s determination in this regard (see, Cauley v State of New York, supra; Wilson v State of New York, 112 AD2d 366). Moreover, "[w]hether a breach of duty has occurred depends upon whether the resulting harm was a reasonably foreseeable consequence of the defendant’s acts or omissions (Danielenko v Kinney Rent A Car, 57 NY2d 198, 204)” (Gordon v City of New York, 70 NY2d 839, 841, supra). Inasmuch as the nurse’s examination of the claimant did not reveal, nor does the record contain, any objective medical findings which demonstrated that prison staff should have reasonably foreseen that the claimant’s condition would substantially worsen overnight, "[the State’s] conduct was reasonable in light of what could have been anticipated, there [was] no breach of duty, no negligence and no liability” (Gordon v City of New York, supra, at 841; see, e.g., Cauley v State of New York, supra).

Furthermore, the claimant’s argument that the State was negligent in failing to have her examined by a doctor more promptly on the morning of January 5 is patently without merit. The record demonstrates that she complained of her ear bleeding at 7:30 a.m. on that date, whereupon the officer on duty immediately contacted the medical staff. At 8:47 a.m., she was directed to be sent to the physician on duty. At that time, all escort officers were on other assignments and no one was immediately available to take her to the doctor. Nevertheless, an officer was in fact made available and escorted her to the physician at 10:28 a.m. This three-hour time lapse can hardly be characterized as an undue delay, especially when one considers that an escort officer was required to accompany the claimant, an essential security measure given her violent criminal history and her unstable psychiatric background. Moreover, even if the delay could be viewed as unreasonable, it was incumbent upon the claimant to demonstrate that the delay proximately caused her injury. Since she testified that she lost her hearing during the preceding night, proximate causation was negated (see, Marchione v State of New York, 194 AD2d 851, supra; Brown v State of New York, 192 AD2d 936).

The cases upon which the majority relies are factually inapposite to the matter at bar. In Ogle v State of New York (191 AD2d 878), an inmate successfully sued for the failure of prison personnel to timely diagnose and treat his spinal tuberculosis. However, in that case, the inmate repeatedly complained of symptoms at various correctional facilities over a period of several months and was never properly tested or treated during that period. Similarly, in Stanback v State of New York (163 AD2d 298), an inmate injured his knee in prison and continuously complained of symptoms at five different facilities over the next three and one-half years, but was consistently misdiagnosed and treated inappropriately during that interval. Likewise, in Larkin v State of New York (84 AD2d 438), an inmate complained of worsening symptoms on an almost daily basis for more than one month, but never received appropriate diagnostic testing and eventually died from a curable aneurysm. Contrary to the majority’s analysis, the instant case, which involved a time frame of 3 to 4 days during which the claimant intermittently showed signs of improvement, is not even remotely analogous to the decisions which it cites.

Furthermore, in the absence of proof of the surrounding objective circumstances, the record completely fails to sustain the speculative claim regarding the alleged inadequate bedding provided to the claimant in December 1987. Moreover, even if the inadequacy of the bedding had been established, there was no evidence that it was either a proximate or aggravating cause of the claimant’s ensuing illness and her subsequent hearing loss (see, e.g, Marchione v State of New York, supra). Additionally, as previously observed, the claimant similarly failed to establish that the six-month time lapse between her loss of hearing and her receipt of a comprehensive hearing examination either constituted an unreasonable delay or was attributable to any negligence on the part of Bedford Hills personnel. Of course, even if she had succeeded in demonstrating these requisite elements, it is clear from the record that the delay in such testing did not cause or contribute to her hearing loss.

While the claimant’s hearing impairment is indeed unfortunate, that fact alone does not render it compensable, nor can hindsight constitute an acceptable substitute for evidence of true negligence. The record unequivocally demonstrates that the prison staff, based on the facts known to them and upon the attendant circumstances, rendered reasonably adequate and prompt care to the claimant. Accordingly, I would reverse the judgment and dismiss the claim in its entirety.

Pizzuto, Altman and Friedmann, JJ., concur with Miller, J. P.; Sullivan, J., dissents in part in a separate opinion.

Ordered that the judgment is modified, on the law, by deleting the provision thereof which awarded the claimant $500 for damages allegedly resulting from the State’s alleged failure to provide adequate bedding; as so modified, the judgment is affirmed, with costs to the claimant.

i Ü,