New York State Court of Claims

New York State Court of Claims

BALACKY v. STATE OF NEW YORK, #2003-018-230, Claim No. 100866, Motion No. M-65567


Synopsis


Defendant's motion is partially granted to the extent that claimants are collaterally estopped from re-litigating the issue of whether the medical staff at the correctional facilities and Dr. Batra at Upstate committed malpractice when they failed to diagnose prostrate cancer in claimant from 1992 through April 11, 1996.

Case Information

UID:
2003-018-230
Claimant(s):
JOHN BALACKY and YADWIGA BALACKY
Claimant short name:
BALACKY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100866
Motion number(s):
M-65567
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
JOSEPH DUBINSKY, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: PATRICIA M. BORDONARO, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 11, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Defendant brings a motion for summary judgment based upon collateral estoppel. Claimants oppose the motion.

Claimants served a notice of intention on the attorney general on March 31, 1998 and filed an original and amended claim with the Clerk of the Court on August 12, 1999. The amended claim alleges that from February 1992 to February 20, 1997, claimant John Balacky,[1]
an inmate in the custody of the New York State Department of Correctional Services, suffered injuries as a result of the negligent medical care he received at various correctional facilities and the State University of New York Health and Science Center (hereinafter referred to as Upstate). Specifically, as a "first claim" claimants assert that medical personnel at the correctional facilities failed to:
administer a PSA test to claimant John Balacky, a male over 50 years of age at the time of his incarceration, so as to timely diagnose prostate cancer before it had spread beyond the confines of the prostate. Additionally, the respondent [sic] failed to conduct adequate, timely and thorough examinations of the prostate and take an appropriate history of urinary complaints, heed the history and complaints given, make proper and timely referrals, and promulgate a policy mandating that a PSA test be part of a basic medical examination for a male over 50 years of age. (Amended claim ¶3)

Claimants also assert as a "second claim" for medical malpractice that from May 3, 1995 to April 11, 1996, at Upstate the defendant:
failed to administer a PSA test to claimant John Balacky, a male over 50 years of age, so as to timely diagnose prostate cancer before it had spread beyond the confines of the prostate. Additionally, the respondent [sic] failed to conduct adequate, timely and thorough examinations of the prostate and take an appropriate history of urinary complaints, heed history and complaints given, make proper and timely referrals, instruct the physicians at the Department of Corrections to conduct a routine PSA test and promulgate a policy mandating that a PSA test, be part of a basic medical examination for a male over 50 years of age. (Amended Claim ¶4)

Claimants also asserted a derivative claim for Yadwiga Balacky as a "third" claim.

On October 6, 1998 claimants commenced an action in the Supreme Court, Onondaga County against Dr. Ashok Batra, the doctor who treated claimant at Upstate. Dr. Batra is an employee of the State. In the Supreme Court case, claimants allege that between June 15, 1995 and April 11, 1996, he was treated by Dr. Batra at Upstate in the Urology Clinic (Dubinsky affirmation, Exhibit 2). Claimants assert a cause of action for medical malpractice, lack of informed consent and a derivative claim for Yadwiga Balacky. The verified bill of particulars in the Supreme Court action particularizes the alleged malpractice as follows:
Failure to take a proper history; failure to heed the history given;
failure to heed complaints of urinary retention, frequency, difficulty
urinating and nocturia; failure to perform a proper rectal exam; failure
to properly palpate the prostate; failure to rule-out prostate cancer;
failure to diagnose prostate cancer in view of plaintiff's age in excess
of 50 years, urinary complaints, prior surgery to reduce benign prostatic hyperplasia, and cystoscopy negative for urethral stricture; failure to
biopsy the prostate; failure to take a tissue sample during cystoscopy;

failure to take a PSA test in a male over 50; failure to order a PSA test
in a male in excess of 50 years; failure to recommend or direct that the Department of Corrections and its Division of Health Services follow
the plaintiff upon his return to incarceration post-cystoscopy with

regular PSA tests and adequate physical examinations; failure to

order an MRI; and failure to order an ultra sound.

(Dubinsky Affirmation Exhibit 3, ¶22)

The verified bill of particulars in this action asserts that defendant State of New York committed the following malpractice at the correctional facilities:
Failure to take a proper history; failure to heed the history given;

failure to heed complaints of urinary retention, frequency,

difficulty urinating and nocturia; failure to perform a proper

rectal examination; failure to properly palpate the prostate;

failure to rule-out prostate cancer; failure to diagnose prostate

cancer; failure to entertain a differential diagnosis of prostate

cancer in view of plaintiff's [sic] age in excess of 50 years,

urinary complaints, prior surgery to reduce benign prostatic
hyperplasia, and cystoscopy negative for urethral stricture
performed at the SUNY Health Science Center at Syracuse,
New York; failure to biopsy the prostate; failure to perform
a PSA test on a male over 50; failure to order a PSA test for
a male over 50; failure to take, order and refer for an MRI;
failure to take, order and refer for an ultrasound; failure to
promulgate a Department of Correctional Services-Division

of Health Services policy to require that a PSA test be

performed on a male over 50.

(Verified Bill of Particulars ¶6, pages 3-4)


Claimants further assert that at Upstate defendant committed the following malpractice:,,,,[,]
Failure to take a proper history; failure to heed the history given;

failure to heed complaints of urinary retention, frequency,

difficulty urinating and nocturia; failure to perform a proper rectal

exam; failure to properly palpate the prostate; failure to rule-out

prostate cancer; failure to diagnose prostate cancer; failure to

entertain a differential diagnosis of prostate cancer in view of
plaintiff's [sic] age in excess of 50 years, urinary complaints,

prior surgery to reduce benign prostatic hyperplasia and

cystoscopy negative for urethral stricture performed at SUNY

Health Science Center at Syracuse, New York; failure to

biopsy the prostate; failure to take a tissue sample during

cystoscopy; failure to take a PSA test in a male over 50;

failure to order a PSA test in a male over 50; failure to take,

order and refer for an MRI; failure to take, order and refer for

an ultrasound; and failure to recommend or direct that the New
York State Department of Correctional Services-Division of Health

Services follow plaintiff [sic] upon his return to incarceration post-
cystoscopy with regular PSA tests and adequate physical examinations.

(Verified Bill of Particulars ¶6, pages 4-5)


A jury trial was held in the Supreme Court action from July 24, 2001 through July 30, 2001. At the conclusion of claimants' case in that action, the Honorable Parker Stone, Supreme Court Justice, directed a verdict for the defendant, Dr. Batra, stating that there was no evidence in the record that claimant suffered from cancer at the time that Dr. Batra treated him in 1995 and 1996. The Justice found that claimants' expert, a urologist, provided no scientific basis or qualified experience or expertise to support his position that cancer would have been present the year before it was diagnosed, during the time when Dr. Batra was treating claimant.

Relying on Justice Stone's ruling, dismissing the Supreme Court case on the merits, defendant now seeks an order granting summary judgment in this action based on collateral estoppel, arguing that the issues in the two cases are identical and if there was insufficient proof that cancer was present when Dr. Batra treated claimant in 1995 and 1996, then claimants cannot establish that the cancer was present prior to1995. Defendant maintains that the issues raised in this case were fully litigated in the Supreme Court case where claimants had competent counsel, called witnesses, provided expert testimony, introduced documentary evidence, but could not establish when the cancer started, thereby precluding any finding that Dr. Batra deviated from the standard of care by not diagnosing the cancer during his treatment of claimant in 1995 and 1996.

Collateral estoppel, or issue preclusion, is a legal principle which prevents a party who has had a full and fair opportunity to litigate an issue from re-litigating it; "...where it can be fairly said that a party has had a full opportunity to litigate a particular issue he cannot reasonably demand a second one" (
Schwartz v Public Administrator of Co. of Bronx, 24 NY2d 65, 69). In order to invoke the doctrine, there must be a showing that (1) there is an identity of issue (2) which was necessarily determined in the prior action and is dispositive of the present case, and (3) the party against whom the estoppel is asserted has had a full and fair opportunity to litigate the issue sought to be precluded in the subsequent action (Schwartz v Public Administrator of Co. of Bronx, 24 NY2d at 71; D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664). It is the burden of the party asserting the application of the doctrine to show that the issues raised are identical, while it is the burden of the opponent of collateral estoppel to prove that there was no full and fair opportunity to litigate (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d at 666; Ryan v New York Tel. Co., 62 NY2d 494, 501).
A review of the bill of particulars for both cases makes it apparent that the issues for the treatment of claimant at Upstate from June 15, 1995 through April 11, 1996 are identical. The basis for claimants' cause of action in both the Supreme Court action and this claim, at least the portion of the claim labeled "second claim," is that Dr. Batra at Upstate failed to timely and properly diagnose claimant's prostate cancer resulting in permanent injuries. As defendant undisputedly notes, all of claimant's care at Upstate was provided by Dr. Batra or under his supervision. The Supreme Court found that claimant did not, as a matter of law, establish that he had cancer at the time he was treated by Dr. Batra (from June 15, 1995 through April 11, 1996) thereby precluding any finding that Dr. Batra committed malpractice by failing to timely and properly diagnose prostate cancer. Clearly that determination is dispositive of the "second claim."

However, the claim before this Court also involves issues in the "first claim" which do not mirror those in the Supreme Court action, specifically, the time frame is different as well as the actors involved. Yet the determination in Supreme Court resolves the issues in this "first claim" for the medical care claimant received from 1992 through April 11, 1996. Claimant's inability to establish that he suffered from prostate cancer in 1995 necessarily precludes any finding that he suffered from prostate cancer
prior to 1995; a fact claimant does not dispute (See Dubinsky affirmation ¶16d, page 5). The underlying basis for claimants' claim in this Court for the earlier time frame is identical to that asserted in the Supreme Court action, the failure to timely and properly diagnose prostate cancer, or make the necessary referrals to do so. Thus, the decision in the Supreme Court case is also dispositive of the medical treatment claimant received from the various correctional facilities from February 1992 until April 11, 1996.
Having found that the decision in the Supreme Court case is dispositive of the issues raised in the claim for the medical treatment claimant received from defendant for the period of time from February 1992 through April 11, 1996, there remains the issue of the allegations asserting medical malpractice for medical treatment received at the correctional facilities from April 12, 1996 until the prostate cancer was diagnosed in February 1997. This time frame, subsequent to April 11, 1996, was not in issue in the Supreme Court action and involves the medical care provided by persons at a facility over which Dr. Batra had no supervisory authority. Thus, the decision in the Supreme Court case cannot preclude the claimant from proceeding in this case to prove malpractice for the care he received by the medical staff at the various correctional facilities from April 12, 1996 until the prostate cancer was discovered in February 1997.

Addressing the last element for application of the doctrine of collateral estoppel, whether the party against whom it is asserted has had a "full and fair opportunity to litigate the issue" to be precluded, defendant maintains that claimants have had that opportunity. Claimants, in opposition, argue that the judgment in the Supreme Court action is not final since it has never been appealed because they were never served with a copy of the Judgment and Notice of Entry. Defendant acknowledges that service of the Judgment was only completed on February 3, 2003. The case law of this State indicates that even the pendency of an appeal does not preclude the use of collateral estoppel (
See, Parkhurst v Berdell, 110 NY 386; Matter of Amica Mut. Ins. Co., 85 AD2d 727; Sullivan v George Ringler & Co., 69 AD 388; Duverney v State of New York, 96 Misc 2d 898, affd 76 AD2d 962; Roulstone v Oesterreicher, 188 Misc 741; Bell v Bell, 17 NYS2d 692, affd without opinion 258 AD 871). This is certainly a factor to be considered in whether estoppel should apply (Duverney v State of New York, 96 Misc 2d at 911). Here, it is clear that the time-frame for pursuing an appeal did not expire, yet there was nothing precluding claimants from appealing the decision. The Supreme Court decision was rendered on July 30, 2001, a Judgment was signed on October 31, 2001 and entered in the Onondaga County Clerk's Office on April 5, 2002. Claimants have had time to bring an appeal, or at least file a notice of appeal. Even if it was a "common sense decision" to not pursue the appeal right away, once claimants were on notice that defendant sought to use that judgment to seek collateral estoppel in this Court, claimants could have filed an appeal at that time.eeee[e] Certainly a pending appeal is more persuasive than the theoretical possibility of an appeal.
Claimants also argue that since Justice Stone's decision was based upon the facts as presented in the Supreme Court case, it cannot bind this Court which can make its own factual findings, and in this case claimants could present testimony from an oncologist to show that claimant's cancer would have been present prior to its discovery in 1997. Claimants do not argue that the testimony of an oncologist would be "new evidence" since there is no indication that claimants were prevented from presenting the testimony of an oncologist in the Supreme Court action. The expert testimony of an oncologist was potentially available at the time of the prior trial. The fact that a trial in this Court will permit claimants to present different evidence, or fill any evidentiary gaps does not preclude collateral estoppel. The doctrine only requires that claimants had a full and fair
opportunity to litigate the issues in the other forum; and it is clear giving consideration to the relevant factors, that in this matter claimants had that opportunity (Ryan v New York Tel. Co., 62 NY2d at 501). The possibility that a new fact finder might find the facts differently does not prevent application of estoppel. It is exactly the underlying purpose of the doctrine of collateral estoppel to avoid ""a different judgment in the second [action which] would destroy or impair rights or interests established by the first"" (See, Ryan v New York Tel. Co., 62 NY2d 494, 501, quoting Schuylkill Fuel Corp. v Nieberg Realty Corp, 250 NY 304, 307; Triboro Fastener & Chemical Products Corp. v Lee, 236 AD2d 603, 604).
Based upon the foregoing, defendant's motion is partially granted to the extent that claimants are collaterally estopped from re-litigating the issue of whether the medical staff at the correctional facilities and Dr. Batra at Upstate committed malpractice when they failed to diagnose prostate cancer in claimant from 1992 through April 11, 1996.



June 11, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

Notice of Motion...............................................................................................1

Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney

General, in support with exhibits attached thereto................................2


Defendant's Memorandum of Law in support..................................................3


Affirmation of Joseph Dubinsky, Esquire, in opposition with exhibits

attached thereto......................................................................................4


Reply Affirmation of Patricia M. Bordonaro, Esquire........................................5

[1]Claimant will refer to John Balacky, unless otherwise noted, since Yadwiga Balacky's claim is solely derivative in nature.

[,],,,,

In claimants' Bill of Particulars, the alleged wrongdoing at Upstate occurred from June 15, 1995, the same date as alleged in the Supreme Court action, through April 11, 1996. The amended claim asserted that this portion of the claim arose beginning May 3, 1995.

[e]eeee

Claimants were served with the motion for summary judgment on July 29, 2002. The motion return date was adjourned until February 5, 2003.