By permission of the Court, claimant has moved, by Order to Show Cause, for
summary judgment as to liability only.
At the outset, the Court is well aware that summary judgment is a drastic
remedy to be granted sparingly and only where no material issues of fact is
demonstrated in the papers related to the motion (see, Crowley's Milk Co. v
Klein, 24 AD2d 920, 264 NYS2d 680 (3d Dept 1965); Wanger v Zeh, 45
Misc 2d 93, affd 26 AD2d 729 (3d Dept 1966).
The 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 (Winegrad v New York
Univ. Med. Center, 64 NY2d 851, 853; Sillman v Twentieth Century-Fox Film
Corp., 3 NY2d 395, 404). Failure to make such a prima facie showing
requires a denial of the motion, regardless of the sufficiency of the opposing
papers (Winegrad v New York Univ. Med. Center, supra, at p 853).
The majority of the facts of this claim are uncontroverted. The evidence
submitted in support of the motion established that claimant's decedent, William
E. Newborn, Jr., was an inmate in the custody of the New York State Department
of Correctional Services (hereinafter DOCS) and was housed at Green Haven
Correctional Facility (hereinafter Green Haven) in A Block, Cell 121 during the
summer of 1997. Green Haven is a maximum security prison and A Block houses
inmates in protective custody (see Exhibit 37). Decedent was serving several
concurrent indeterminate sentences for automobile related crimes and was
eligible for parole on September 15, 1997 (see Exhibit 2).
Decedent had a history of mental health problems and treatment dating to 1985.
On May 16, 1997 a DOCS Senior Correction Counselor noted decedent's rapid mood
swings and poor disciplinary record and referred decedent for a psychiatric
evaluation (see Exhibit 67). Decedent was interviewed by a psychiatrist and was
diagnosed with Bi-Polar II Disorder, Hypomanic and Anti-Social Personality
Disorder. He was designated for Office of Mental Health (hereinafter OMH)
Services as Level One, the most intensive level of care for the purpose of
medication monitoring by psychiatric/nursing staff (see Exhibit 26 and Exhibit
67). Level One requires one-to-one administration of medication by a nurse (see
Exhibit 26 and Exhibit 56).
Decedent was seen regularly by mental health staff until the August 1, 1997
incident preceding his death. Progress notes of sessions with mental health
clinicians reflect decedent's impulsive behavior, rapid mood swings, suicidal
and homicidal ideations, his intent to change from liquid medication to pill
form and his request to spend a few days in the Psychiatric Satellite Unit
(hereinafter PSU) at Green Haven to get some relief from the stress of
incarceration (see Exhibit 67, Page 5).
Decedent was prescribed Pamelor (Nortriptyline) for headaches on June 10, June
16, July 8, July 21 and July 29, 1997 (see Exhibit 67, Page 11). Pamelor is a
tricyclic antidepressant commonly used for relief of depression (see Exhibit 30,
Physicians' Desk Reference [hereinafter PDR]). Decedent appeared before the
Parole Board in early July 1997. On July 19, 1997 he told a social worker that
he would attempt suicide if the Parole Board denied him parole (see Exhibit 67,
On July 24, 1997 decedent was seen by DOCS psychiatrist, Dr. Choo in the PSU at
Green Haven. During that interview, decedent reported having unstable mood
swings for a long time. He expressed his past thoughts of killing himself and
others because of these mood swings. He denied any intentions of killing
himself or others at that time and agreed to request help from the PSU if he
felt suicidal or homicidal. He also reported that he took some pills to help
him sleep and reduce stress (see Exhibit 67, Pages 9-10). On July 24, 1997 the
doctor prescribed both Trilafon and Elavil to help decedent sleep. Elavil is a
tricyclic drug of the same class as Pamelor (see Exhibit 29). It is medically
contraindicated to prescribe Elavil and Pamelor at the same time (see Exhibit
30, PDR). By July 29, 1997 decedent knew he had been denied parole and had to
serve at least two more years of his sentence (see Exhibit 76, letter from
Decedent to Claimant dated July 29, 1997).
On July 31, 1997 decedent was seen by the Mental Health Unit Chief for
supportive therapy. Decedent appeared more animated than on previous occasions
and his mood was slightly improved. However, he had difficulty remembering his
last mental health encounter. He reported that he refused medication because it
upset his stomach. He requested to spend a few days in the PSU to get some
relief from the stress and pressure on his cell block. Decedent was advised
that he would have to speak with the doctor regarding this matter and that the
Unit Chief would try to arrange a meeting for August 1, 1997. Progress notes
dated August 1, 1997 (Exhibit 12) reflect that "patient will be seen again today
pm on call out scheduled asap" (see Exhibit 67, Page 10).
At about 12:50 p.m. on August 1, 1997 decedent told Correction Officer (C.O.)
Henschel that he wanted to be ready to go to PSU when the escort officer arrived
to take him. Therefore, he requested permission to leave the exercise yard
early to return to his cell (see Exhibit 25). C.O. Henschel let decedent into
his cell but refused to leave the door open, which the inmate wanted him to do
in case the escort officer was late. When decedent became agitated at being
locked in, Henschel said that he would give the escort 20 minutes and if the
escort was late, Henschel would let decedent out (Exhibit 13, Henschel memo).
No escort officer arrived to take decedent to the OMH call-out (Exhibit
At approximately 1:20 p.m., decedent began calling for the Block officer.
Since C.O. Henschel was busy, C.O. Trainee Schrader responded. When the
officer, at the direction of C.O. Dienhoffer, refused to let decedent out of his
cell, he allegedly became "wild", yelled at the C.O.s and "trashed his cell".
According to an entry in the housing unit log, decedent "tore up his cell while
waiting to see PSU doctor" (Exhibit 38; see also Exhibit 16 [Thacker memo]).
C.O. Henschel, hearing the commotion, came to Newborn's cell at about 1:35 p.m.
and talked to him for about 20 minutes, calming him down (Exhibit 13).
According to C.O. Henschel, during this talk, decedent slammed his forehead
against the cell wall "several times very hard", repeatedly punched his locker
and cursed C.O. Trainee Schrader (Exhibit 13). After decedent calmed down and
straightened out his cell, in compliance with Henschel's precondition, he was
permitted to go to the yard (Exhibit 13). Within 15 minutes, however, decedent
complained that "they" would not leave him alone and asked to be returned to his
cell (Exhibit 33).
Decedent's OMH record indicates an officer called the OMH clinic at 2:05 p.m.
(Exhibit 12 and Exhibit 67). An OMH nurse's note records that the calling
officer was instructed to tell the inmate that if an escort was unavailable, PSU
would schedule him again in the morning. When the C.O. thereafter reported that
the inmate was talking to himself and to "someone who wasn't there" the nurse
advised the C.O. to notify the Sergeant to have the inmate escorted to PSU. It
appears that this advice was not followed.
At approximately 2:00 p.m. another C.O. saw decedent grab something and put it
to his mouth. The block officer observed decedent throwing an empty container
to the floor. When questioned what it was, decedent told the officer it was
pills for his headaches and to help him sleep. The inmate then laid down on the
floor. Decedent was questioned several times as to what he ingested and he
insisted he only took one pill. The C.O. noted that the empty bottle was dated
July 30 and originally contained 30 pills. The block officer called the clinic
and was instructed to get the inmate to the clinic. Decedent walked with the
escort officer to the clinic. At 3:00 p.m. decedent was examined by a doctor -
BP was 120/80; p-88 (regular); r-20. The doctor ordered that decedent be
transported to an outside hospital for monitoring. At 3:58 p.m. Sloper-Willen
Ambulance Service received a call from the facility regarding an overdose and
responded immediately. While awaiting for the ambulance, decedent was in a room
adjacent to the clinic and was observed falling to the floor from his chair. He
was snoring deeply. BP was 100/64; p 104 (regular); r-20, pupils equal and
reactive to light. The inmate became combative when he was placed on the
Sloper-Willen arrived at the scene at 4:10 p.m. According to the prehospital
care report, decedent was lying on the prison stretcher unconscious and
unresponsive with snoring respirations. Decedent was given oxygen (10 LPM via
face mask), placed on the ambulance stretcher and brought to the ambulance. A
cardiac monitor was applied which showed sinus tachycardia with no ectopics. An
IV was established in his left hand with an 18 gauge needle; blood drawn and
IV Sodium Chloride "wide open" was administered. Vitals were monitored and
inmate still had snoring respirations. The notes reflect D50 given by IV push,
2 mg Narcan IV push and 100 mg Thiamine IV push being administered. Decedent
had a grand mal seizure (20 seconds) immediately following the administration of
Narcan. An oral airway was inserted and decedent was bagged with BVM and 100%
oxygen. The Medical Control Physician was contacted and ordered airway
protection with intubation. Intubation was attempted with a 7.5 endotracheal
tube but proper visualization could not be obtained. The inmate was bagged with
oral airway and BVM and suctioned. Good air exchange and chest rise were noted.
Skin color remained good. Decedent was non-diaphoretic and his heart rate and
mentation remained the same. Vitals were repeated once during transport. A
physical exam of the inmate showed a morbidly obese male with scarring noted on
antecubital areas. Pupils were sluggish to react. Some abrasions were noted to
wrists and abdomen from chains and seizure activity. The ambulance arrived at
St. Francis Hospital in Poughkeepsie at 5:14 p.m. Decedent arrived at the
emergency room in respiratory distress and unresponsive. He was treated, placed
on a ventilator and subsequently admitted to the Intensive Care Unit. He had a
rocky hospital course lasting 13 days during which he showed gradual improvement
of a condition treated presumptively as Nortriptyline poisoning. However, he
developed complications, including Pulmonary Thromboembolism, which were
irreversible and he died on August 13, 1997 (see Exhibit 25, Pages 3 - 4;
Exhibit 67, Pages 12 -14). Claimant asserts that the defendant was negligent
and committed medical malpractice in its care and treatment of decedent.
With regard to claimant's assertion that the State negligently distributed
medication to decedent, the Court finds that claimant has established that DOCS
policies require that drugs be administered only by appropriately licensed
personnel "who shall ensure that psychotropic medications such as
Pamelor/Nortriptyline are swallowed by the inmate patient" (see Exhibit 11, DOCS
Guidelines for Pharmacy Services and Drug Accountability). Such policies were
not followed in this instance. The State Commission of Correction Medical
Review Board (hereinafter COC) Summary Report (Exhibit 67) found that the Green
Haven medical and pharmacy staff's management of decedent's medication was
clearly deficient in not taking into consideration the total management of the
medication program and that by July 30, 1997, decedent was in possession of at
least three prescriptions and thirty-five 50 mg. tablets of Pamelor (Exhibit 67,
Pages 11 - 12). The final report of the COC (Exhibit 25) concludes that Green
Haven was in violation of DOCS Guidelines for Pharmacy Services and Drug
Accountability Section IV (A) (1) which states that all Federal and State
controlled medications and psychotropic medications will be administered by a
nurse and Section IV (A) (3) which states that a pharmacist shall have a
reliable method (i.e. patient profiles, computerization, consecutive
prescription numbers) by which to track refills if the prescription order is
written for longer than one month.
Separate from the State's above asserted negligence, claimant also asserts that
the State was negligent in violating DOCS and Green Haven security rules in the
distribution of Pamelor to decedent. The DOCS' Employee Manual (Exhibit 8)
"Controlled substances are not permitted to be possessed, stored, or consumed
in any facility except on a valid order or prescription of a qualified
physician. Under no circumstances shall inmates have access to opiates,
narcotics, or other substances producing similar effects" and also provides "all
employees shall take every precaution to prevent the...misuse of
The DOCS Standards of Inmate Behavior (Exhibit 10) regulates inmate behavior.
Section 113.12 provides that inmates shall not possess any controlled substance.
Section 113.14 provides that inmates shall not possess quantities of medication.
The evidence has established that Pamelor is a controlled substance and that on
August 1, 1997 decedent was in possession of at least 30 Pamelor pills.
Based upon this record, the Court finds that claimant's submissions in support
of its motion for summary judgment on the above-discussed negligence causes of
action satisfy the prima facie showing required to warrant judgment as a matter
of law if not rebutted by defendant.
Given claimant's prima facie showing, it was incumbent upon the State to submit
evidentiary facts or materials sufficient to demonstrate the existence of a
triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557,
562; Alvarez v Prospect Hosp., 68 NY2d 320; Fileccia v Massapequa Gen.
Hosp., 63 NY2d 639; Toledo v Ordway, 208 AD2d 518). The State's
opposition material relating to the discussed negligence causes of action fails
to raise any such triable issue. Thus, the Court finds claimant is entitled to
summary judgment as to liability on these causes of action and same is hereby
The Court now turns to claimant's medical malpractice causes of action.
Claimant asserts that decedent did not receive proper and adequate medical care
at Green Haven prior to his overdose and after he was brought to the medical
clinic on August 1, 1997 following his ingesting of the pills.
It is well settled that the State owes a duty to its incarcerated citizens to
provide them with adequate medical care (Kagan v State of New York, 221
AD2d 7). Moreover, when the medical care provided by the State includes the
provision of psychiatric services, the State will be held to the same duty of
care as a private institution engaged in such activity (Rattray v State of
New York, 223 AD2d 356; Amadon v State of New York, 182 AD2d 955,
Thus, when prison authorities know, or should know, that a prisoner has
suicidal tendencies, a duty arises to provide reasonable care to assure that
such harm does not occur (Gordon v City of New York, 70 NY2d 839).
In support of her motion, claimant has submitted the affirmation of Alan J.
Tuckman, M.D., a Board certified physician in psychiatry, neurology and forensic
psychiatry. The doctor avers that he has reviewed decedent's OMH and DOCS
records, among other documents. In light of the facts set forth in decedent's
medical and mental health records, particularly the rejection of his application
for parole (which decedent had learned about by July 29), Dr. Tuckman concludes
that the defendant's medical staff, which had been treating decedent with
antidepressant medications, should have anticipated the likely possibility that
he would engage in self-harming, if not suicidal behavior. He opines that
defendant's employees should have become extra-responsive to him and vigilant
for such behaviors (see Tuckman Affirmation in Support, Paragraph 4).
Claimant also asserts that the delay by the State in rendering medical
assistance to her son on August 1, 1997 ultimately lead to his death. In
support of this position, Dr. Tuckman avers the likelihood of his death was
extremely high due to defendant's delay in treating decedent for the overdose
(Tuckman Affirmation in Support, Paragraph 6).
The requisite elements of proof in a medical malpractice action are (a)
deviation or departure from accepted practice and (b) evidence that such
departure was a proximate cause of injury or damage (see, Bloom v City of New
York, 202 AD2d 465).
The Court finds that Dr. Tuckman's affirmation is bare and conclusory and thus,
claimant has failed to establish as a matter of law that she is entitled to
judgment in her favor (Winegrad v New York Univ. Med. Center, 64 NY2d
851; Montalbano v North Shore University Hospital, 154 AD2d 579). Dr.
Tuckman does not provide sufficient basis for his conclusion that the State's
medical personnel should have anticipated the likely possibility decedent would
engage in self-harming behavior because of his parole denial. He does not offer
an opinion as to how the medical providers should have better responded to
In addition, Dr. Tuckman does not indicate what protocols should have been
followed subsequent to the overdose on August 1, 1997 or how the State's medical
personnel deviated from accepted medical practice. He merely asserts that
"[g]iven defendant's delay in treating decedent for the overdose, the likelihood
of his death was extremely high" (Tuckman Affirmation, Paragraph 6). Thus, the
Court finds that claimant has failed to establish her entitlement to judgment as
a matter of law on the malpractice causes of action and this portion of
claimant's motion is denied.
Claimant also asserts that the State was negligent in failing to notify
claimant, decedent's next of kin, of his hospitalization. Exhibit 43, entitled
"Outside Hospital Admission - Notification of Person of Inmate's Choice", is a
DOCS form which is required to be completed when an inmate is to be admitted to
a hospital outside the correctional facility. Nurse Bodzak wrote on the form to
be completed by decedent that he "refused to sign". She then signed and dated
the form but did not record the time (see Exhibit 43). Claimant asserts that
DOCS Directive #4451 provides that a competent inmate may choose the person who
is to be notified but, if the inmate is incompetent, DOCS must determine who to
notify (see Exhibit 42).
Claimant asserts that Nurse Bodzak knew of decedent's drug overdose and,
inevitably, his consequent impairment when he refused to sign and that at the
very moment Bodzak was allegedly seeking to inform decedent of his "right to
have or not have one outside person of [his] choice notified [that he was about
to be] admitted to an outside hospital", (see Exhibit 43) decedent was
undoubtedly experiencing diminished consciousness. However, the evidence
submitted does not establish that decedent was experiencing diminished
consciousness at the time the nurse presented the form to him. The Court
concludes that a factual issue exists as to whether the State was negligent in
failing to notify claimant of decedent's hospitalization in accordance with the
Outside Hospital Admission - Notification of Person of Inmate's Choice.
An emergency such as an inmate's attempt to commit suicide by drug overdose
must be reported in an unusual incident report (hereinafter UIR) within one hour
of its occurrence (Exhibit 23). The incident is first telephoned to the DOCS
Central Albany office and then memorialized in writing. Based upon the type of
incident reported, upper-level DOCS officials determine whether the pertinent
procedures, such as those mandated by Directive # 4451 ("Outside Hospital
Admission - Notification of Person of Inmate's Choice"), were followed, and, if
not, order appropriate action. In the case of decedent's suicide attempt, the
evidence submitted establishes that no timely UIR was filed.
Green Haven employees knew as early as August 4, 1997 that the required UIR had
not been filed (see Captain Thacker's memorandum to Lt. Pelc, inquiring,
inter alia if a UIR "was done" and for a response "ASAP" as to whether
"anything done on overdose?", Exhibit 28). No UIR was filed until decedent's
death, itself a separately reportable UIR event.
Yet another institutional check that failed was the Watch Commander's
responsibility to follow relevant regulations. This correction official must
maintain a log that records unusual incidents and any "escorted outside trip
such as...medical [ones]" (Exhibit 32). Decedent's removal by ambulance from
Green Haven to St. Francis Hospital was an escorted outside trip. Moreover,
this failure occurred notwithstanding Watch Commander Pelc's knowledge that
decedent had been transported to the hospital (see Pelc's August 7, 1997
memorandum to Captain Totten, Exhibit 6).
Lt. Pelc's related failure to adhere to Directive # 4451 violated his
responsibility to notify decedent's next of kin. Subdivision III-B-1 of this
directive sets forth the Watch Commander's responsibilities in the event an
inmate is admitted to an outside hospital during "non-business" hours or on a
weekend (see Exhibit 42). Decedent was admitted to the hospital on a weekend
during a non-business hour (Friday, August 1, 1997, at 5:14 p.m.), which is
during Green Haven's 3:00 p.m. to midnight shift. The Watch Commander's
next-of-kin notification requirement is separate and distinct from that of the
The Court finds that claimant has established that the defendant was negligent
in failing to complete a UIR, in not maintaining the Watch Commander's log and
in not notifying claimant of decedent's admission to an outside hospital on a
weekend during a non-business hour. Therefore, the Court finds that claimant is
entitled to summary judgment as to liability on this cause of action and this
portion of the motion is granted
Finally, the State asserts that the issue of decedent's contributory negligence
precludes the granting of summary judgment in this case. This issue is an
affirmative defense and the burden of proof is upon defendant to establish a
question of fact exists as to this issue. The issue of contributory negligence
in a suicide case is whether based upon the entire testimony presented, the
trier of facts concludes the injured person was able to control his actions
(Padula v State of New York, 48 NY2d 366; Mochen v State of New
York, 43 AD2d 484, 487). The standard of care which a mentally ill patient
must exercise to protect himself is not based upon the objective standards of a
reasonable person, but rather it is based upon the capacity of the patient and
his perception of danger, considering the degree of his illness (Horton v
Niagara Falls Memorial Medical Center, 51 AD2d 152).
General allegations, merely conclusory in nature and unsupported by competent
evidence are insufficient to defeat claimant's entitlement to summary judgment
(see, Alvarez v Prospect Hosp., 68 NY2d 320; Toledo v Ordway, 208
AD2d 518). Defendant has submitted only the affirmation of its counsel. This
affirmation by defense counsel is not based upon personal knowledge of the
essential facts and is thus insufficient to defeat a motion for summary judgment
(Caramanica v State Farm Fire and Cas. Co., 110 AD2d 869). There is no
affidavit of a medical expert submitted to establish that decedent was not so
mentally impaired that he was able to control his own actions (see Padula v
State of New York, supra). Thus, the Court concludes that the State
has failed to establish a question of fact as to decedent's contributory
negligence and therefore, this issue does not preclude the granting of summary
judgment as set forth herein.
Therefore, in accordance with the foregoing, claimant's motion for summary
judgment as to liability is denied in part and granted in part. The liability
portion of the trial of the remaining issues will be held as previously
scheduled on February 4, 2003.
The following papers were read and considered by the Court on claimant's motion
for summary judgment as to liability:
Order to Show Cause, Affirmation of
Counsel, Claimant's Affidavit,