New York State Court of Claims

New York State Court of Claims

MCKINS v. THE STATE OF NEW YORK, #2002-016-016, Claim No. 97352


Synopsis



Case Information

UID:
2002-016-016
Claimant(s):
JOHN MCKINS
Claimant short name:
MCKINS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97352
Motion number(s):

Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
John McKins
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
February 11, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This decision follows the trial of the claim of John McKins. On or about September 2, 1997, claimant, while incarcerated in Woodbourne Correctional Facility, Sullivan County, was taken to Albany Medical Center for an ultrasound examination of his abdomen.

Mr. McKins alleges that during the procedure, the correction officers who had escorted him from Woodbourne were in the hospital room and so close as to inhibit his ability to speak to the doctor without being overheard. Claimant testified:
I was laying down and Officer [Norris] was right besides my hand and...when Officer [Specht] came in, he stood beside Norris to my far side but directly beside Norris.

The accompanying officers were Roger Specht, who was called by the defendant to the stand, and G. Norris. Specht testified that his duties included transporting inmates to different hospitals, naming a half a dozen he had traveled to with inmates in custody. In Specht's experience, Albany Medical center is "a little ... stricter than the other hospitals."
Specht stated that it was his responsibility to go into the room first and take care of the inmate's handcuffs and leg irons, as appropriate to the medical procedure. Norris is the only one of the two who carries a firearm and follows Specht.
Policy in this area is set by the Department of Correctional Services' Directive 4904, which is entitled
Rules and Regulations for the Operation of Outside Hospital Detail (court exh 1). The Directive provides in part that officers assigned to hospital detail shall take a position affording an unobstructed view of the inmate and the hallway leading to the room, and not let the inmate pass from sight, except when supervision of the inmate is turned over to another correction officer (¶G, [subparas] 7 and 8).
McKins contended that there was no need for two officers in the room as it only had one way in and out. Specht testified, consistent with his handwritten statement in response to claimant's grievance, that the hospital room in question had two doors, excluding the door to the bathroom. (cl exh 2).
Officer Norris in his memorandum to a Lt. Jones also recalled the room as having two doors (id.). Directive 4904 requires that correction officers "[m]ake themselves aware of all exits and entrances to the inmate's room and to the general area (¶G, [subpara] 6).
McKins' testimony that the room had only one door (other than to the bathroom), and therefore was arguably securable with only one officer, in view of his total narrative and prior statements do not lead me to credit his description of the room's layout over that of officers Specht and Norris. Claimant's testimony as to how near Norris was to him seemed at odds with the fact that Norris was carrying a weapon.

McKins' grievance and the response thereto contain an admission at variance with his assertion at trial that a breach of confidentiality had occurred:
I asked if any of the conversation was confidential. He stated "no."
[cl exh 2, the memorandum from Lt. Jones to Capt. Piatek]
Officer Specht testified that he could not remember what was said between claimant and physician, adding that he makes frequent trips with inmates to hospitals, focuses on his security responsibilities and does not sit there trying to hear what transpires between doctor and patient.
***
In sum: i) the validity of Directive 4904 was never objected to by McKins; ii) the fair preponderance of the credible evidence suggests that Directive 4904 was complied with; and iii) the fair preponderance of the credible evidence suggests that no confidential medical information was disclosed. It should be noted that where matters within the physician-patient privilege are disclosed, it is the use thereof that may become subject to challenge. See, in situations lacking the security concerns implicated here,
People v Decina, 2 NY2d 133, 157 NYS2d 558 (1956); Prink v Rockefeller Center, Inc., 48 NY2d 309, 315, 422 NYS2d 911, 915 (1979).
Therefore, claim no 97352 of John McKins is
dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.

February 11, 2002
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims