New York State Court of Claims

New York State Court of Claims

LOPEZ v. THE STATE OF NEW YORK, #2003-031-078, Claim No. 104247, Motion Nos. M-66071, CM-66449


Synopsis


Claimant has stated a valid cause of action for negligence and negligent infliction of emotional distress. Defendant is grated partial summary judgment dismissing Claimant's other alleged causes of action, including medical malpractice and federal constitutional violations.

Case Information

UID:
2003-031-078
Claimant(s):
EDGAR LOPEZ
Claimant short name:
LOPEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104247
Motion number(s):
M-66071
Cross-motion number(s):
CM-66449
Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
JAKE HARPER, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 29, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 10, were read on motion by Defendant for summary judgment and cross-motion by Claimant for permission to file a late certificate of merit:
  1. Defendant's Notice of Motion, filed November 22, 2002;
  2. Affidavit of Wendy E. Morcio, Esq., sworn to November 21, 2002, with attached exhibits;
3) Affidavit of Neal Rzepkowski, MD, sworn to November 21, 2002, with attached exhibits;
  1. Unsworn statement of Jake Harper, Esq., entitled "Claimant's Cross Motion To Extend Time To Serve Certificate Of Merit," dated February 25, 2003, with attached exhibits;
5) Affirmation of Jake Harper, Esq., dated February 25, 2003, with attached exhibits;
6) Affidavit of Jeffrey Kahn, MD, sworn to February 12, 2003, with attached exhibit;
7) Reply Affidavit of Wendy E. Morcio, Esq., sworn to March 26, 2003, with attached exhibits;
8) Affidavit of Neal Rzepkowski, MD, sworn to March 26, 2003, with attached exhibits;
  1. Sur-Reply Affirmation of Jake Harper, Esq., dated June 24, 2003, with attached exhibits;
  2. Affidavit of Jeffrey Kahn, MD, sworn to June 24, 2003. Upon the foregoing papers, Defendant's motion is granted, in part. Claimant's cross-motion is denied.
This is Defendant's motion for summary judgment, and Claimant's cross-motion for permission to file a late certificate of merit, pursuant to CPLR § 3012-a. In his underlying claim, filed on May 8, 2001, Claimant Edgar Lopez alleges that, while an inmate at Gowanda Correctional Facility, he was improperly prescribed the medication Nevirapine, to which he had a severe allergic reaction. He also alleges that he was denied proper medical care for a period of days after suffering the allergic reaction. The claim itself purports to allege seven causes of action. The claim and bill of particulars are not completely consistent with Claimant's current allegations, either in the events themselves or in their sequence, however Claimant's medical records indicate that Defendant's agent, Dr. Sukoo Lee, prescribed the medication Nevirapine to Claimant on February 2, 1999. Approximately three weeks later, on February 22, 1999, Claimant was seen again by Dr. Lee. At that time, Claimant's dosage of Nevirapine was increased. The increased dosage was apparently based upon Dr. Lee's determination that Claimant had tolerated the medication well, up to that point. Thereafter, on approximately March 3, 1999, Claimant began to experience a rash on his body that he believed was a side effect of the increased dosage of the Nevirapine. Claimant alleges that, despite his complaints, he was denied proper medical treatment relating to the rash until the morning of March 8, 1999, at which time his condition had become so severe that it was necessary to rush him to an outside hospital for care and treatment.

As stated earlier, the claim purports to allege seven causes of action. The first of these relates to the "negligent denial of, or delay in providing medical treatment." In this cause of action, Claimant clearly alleges that his rash grew worse during the days immediately following its onset. He alleges that he was denied proper medical care between March 3, 1999, when his rash first appeared, and March 8, 1999, when he was taken to the outside hospital. Claimant has set forth a valid cause of action for negligence relating to this five day period. Defendant's submission of evidence to the contrary, though compelling, does not negate the fact that, for purposes of this motion, I must view the evidence in a light most favorable to the non-moving party (see Szczerbiak v Pilat, 90 NY2d 553, 556). For this reason, I find that there is a question of fact as to whether Claimant was negligently denied medical care between March 3 and March 8, 1999.

In his second cause of action, Claimant alleges both negligent and intentional infliction of emotional stress relating to the period of time between the onset of his rash and his treatment at an outside hospital. To the extent that this cause of action alleges intentional infliction of emotional distress, it must be dismissed as public policy prohibits an action against the State for intentional infliction of emotional distress (Brown v State of New York, 125 AD2d 750, motion for lv to appeal dismissed 70 NY2d 747; Wheeler v State of New York, 104 AD2d 496; DeLesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610).

To the extent that Claimant's second cause of action can be construed to assert the negligent infliction of emotional distress, Claimant's allegations that he was denied medical care between March 3 and March 8, 1999, are perhaps enough to sustain this cause of action. As stated by the Appellate Division, Third Department in Dobisky v Rand (248 AD2d 903, 905):
A claim for negligent infliction of emotional distress requires a showing that defendants' conduct unreasonably endangered plaintiffs' physical safety or, as exceptions to this rule, that untruthful information regarding death was transmitted or that a corpse was negligently mishandled (see Johnson v State of New York, 37 NY2d 378, 381-382).
Although it has been said that the State is liable for negligent infliction of emotional distress only in "extremely rare instances," because Defendant's alleged negligence arguably endangered Claimant's physical safety, I decline to grant summary judgment on that portion of Claimant's second cause of action at this time (see Collins v State of New York, Ct Cl, August 4, 2000, Read, P.J., UID #2000-001-042).

Claimant's fourth, fifth, sixth and seventh causes of action all purport to allege Federal Constitutional violations and invoke 42 USC § 1983 et. seq. I note first that these alleged violations are set forth in conclusory fashion and Claimant has failed to come forward with factual support to support these allegations. Be that as it may, a cause of action under the Federal Constitution is not cognizable in this Court (see Ferrer v State of New York, 172 Misc 2d 1, 5; Gill v State of New York, Ct Cl, Jan. 10, 2001, Mignano, J., UID # 2001-029-042). For this reason, Claimant's fourth, fifth, sixth and seventh causes of action must be dismissed.

This leaves Claimant's third cause of action, which alleges that Defendant is responsible for the medical malpractice of Dr. Sukoo Lee, who improperly prescribed a medication for Claimant without first determining if he was allergic to that medication. Of course, the proponent of a motion for summary judgment 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). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial (Alvarez v Prospect Hospital, 68 NY2d 320). Defendant asserts, and Claimant apparently now concedes, that, contrary to the allegations of the claim, the medication Nevirapine was appropriately prescribed to Claimant. The parties have hotly contested whether Claimant has set forth adequate support for a cause of action for medical malpractice apart from the improper prescription of Nevirapine.

Claimant's current position in this regard is that, although Dr. Lee correctly prescribed Nevirapine, and correctly increased the dosage only after Claimant had demonstrated an apparent ability to tolerate the medication, Dr. Lee's failure to warn Claimant that he should discontinue the medication if he developed a rash constituted medical malpractice. This assertion comes from Claimant's expert Dr. Jeffrey Kahn. The basis of this assertion comes from Dr. Kahn's review of Claimant's medical records, which show no indication that such a necessary warning was given to Claimant. Dr. Kahn further opines that, after increasing the Nevirapine dosage on February 22, 1999, Dr. Lee's scheduling Claimant's return consultation for April 5, 1999, also constituted malpractice because the intervening six weeks was too long a period to permit the Claimant to go unmonitored.

Defendant objects to Claimant's asserting these acts of alleged malpractice for the first time in response to this motion. Defendant points out that neither of these matters is alleged in the claim and that it is improper for Claimant, at this juncture, to assert a new theory upon which medical malpractice could allegedly be based. I find the Claimant's new allegations troubling for these as well as other reasons.

With regard to the scheduled return consultation, Claimant asserts that it was malpractice to schedule Claimant to be seen on April 5, 1999. This scheduled appointment notwithstanding, Claimant was in fact seen on March 8, 1999. There is nothing in Claimant's papers suggesting that Claimant's follow-up should have been scheduled prior to March 8, 1999. For this reason, I find the fact that he was not scheduled to be seen until April 5, 1999 to be of no significance. The scheduling of this appointment could not possibly have been causally related to the injuries of which Claimant complains.

Dr. Kahn also asserts that Dr. Lee committed medical malpractice when he failed to warn Claimant that he should discontinue the medication if he developed a rash. I find that, at most, Dr. Kahn's review of Claimant's medical records could determine that Defendant failed to record that Claimant had been warned about developing a rash. Dr. Kahn has no direct knowledge of whether that warning was actually given. Conspicuously absent from the numerous submissions relating to this motion is any statement from Claimant indicating that he, in fact, was not warned. Moreover, the medical records clearly indicate that Claimant did discontinue the medication within a day or two of the rash developing. Therefore, not only is this new theory unsupported factually, even if true, it is not causally related to Claimant's injuries. For this reason, I find that Defendant is entitled to summary judgment dismissing Claimant's medical malpractice cause of action.

Based upon the foregoing it is:

ORDERED, that Defendant's motion for summary judgment is granted in part, and Claimant's third, fourth, fifth, sixth, and seventh causes of action, as well as that portion of Claimant's second cause of action which alleges intentional infliction of emotional distress, are dismissed. Defendant's motion for summary judgment is denied with respect to Claimant's First and Second causes of action to the extent that they allege Defendant's negligent failure to provide medical care to Claimant between March 3, and March 8, 1999, and the negligent infliction of emotion distress between March 3, and March 8, 1999. Claimant's cross-motion for permission to file a late certificate of merit is denied as moot.

October 29, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims