New York State Court of Claims

New York State Court of Claims

HARRIS v. THE STATE OF NEW YORK, #2006-030-011, Claim No. 106085


Case Information

Claimant short name:
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Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
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Claimant’s attorney:
Defendant’s attorney:
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Signature date:
June 13, 2006
White Plains

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See also (multicaptioned case)

George Harris alleges in Claim Number 106085 that Defendant’s agents negligently failed to provide him with adequate mental health screening and associated care, and subjected him to cruel and unusual punishment and deliberate indifference while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS) at Downstate Correctional Facility (hereafter Downstate) and Auburn Correctional Facility (hereafter Auburn). Trial of the matter was held at Sing Sing Correctional Facility on March 3, 2006.
Claimant testified that prior to his transfer to Downstate on December 4, 2001 he had been in the “mental observation unit at Rikers,”
with a “diagnosis of Bipolar disorder.” When he arrived at Downstate for orientation, he explained to personnel that he did not take his medication before his transfer, and then had to wait to see a psychiatrist before being given his medication at Downstate. He explained that he was “agitated” and had “a lot of frustration because of the travel and the conviction.” He was “taking 300 milligrams of Tegretol when . . . [he] left Rikers” custody, as shown in a “medication order sheet”. [See Exhibit 1]. He recalled telling an individual at “screening, or orientation, where all the medical review occurs”, that he had just come from a mental observation unit, and did not have his medication, and was told in turn that “a psych would be appointed to you, and he’ll take care of it.”
When Claimant asked if he could go directly to a “mental unit”, he was told he would have to wait until they did an assessment. Next thing he knew, they placed him in general population, rather than a mental health unit, despite the fact that he stated he had records with him from Rikers showing that he was “unstable” up to and including the day of his transfer. He referred the Court to a treatment plan from the New York City Health and Hospitals Corporation (hereafter NYCHHC) showing what appear to be evaluations by medical personnel associated with NYCHHC dated up to November 19, 2001. [Exhibit 2]. This, and another uncertified series of records from NYCHHC - in no particular date order - were offered and accepted into evidence subject to whatever weight their admission would afford. [See Exhibit 3].
In the general population, because of his “edginess” and because he was “not feeling himself”, he knew the best course was to be by himself so as not to get into any conflict, and asked for his medication again. He was told to seek a mental health call out. He saw “a lady” with an unpronounceable name - “Doctor Abastilis” - and she told him “ to look to Jesus.” He decided she was not looking after his best interest. Thereafter, he wrote a letter to Mr. Hill requesting to speak to him. Mr. Hill, as he understood it, is one of the counselors. He never got a response. He “got a Tier 2 ticket - the second one” - still complaining that he did not get the proper medication.
Mr. Harris said when he did get medication, he did not get “proper blood work” prior to being prescribed. “Tegretol is a toxic medication,” he said. Instead of the “300 milligrams he had been receiving, they increased it another 600 milligrams” at Downstate. Mr. Harris explained that if he shows “signs of effects from the medication, such as increased suicidal feelings or acting out it may mean that the meds are too high or too low, that’s why they take periodic blood work for evaluation.”
Nonetheless he “figured that they know what they’re doing, and . . . [he took] it.” Sometime later, he got another ticket for yelling and screaming at an officer, because they “bothered . . .[him] when . . . [he] was sleeping” while he was keeplocked in his cell. While keeplocked in the general population, he alleges he did not get the help he needed, and the only thing brought to him was food.
Before “evaluation was ever completed” at Downstate, he was transferred to Auburn Correctional Facility. When he arrived there, he immediately explained to the housing officer that he needed to speak to mental health, that he was feeling “agitated” and did not know what was going to happen as a result. He was told to sign up for sick call. When Claimant said, “I can’t sign up for sick call because I am keeplocked”, he was told “well you shouldn’t have gotten yourself in that situation.” He was placed in a cell “way up on 5 gallery, in 25 cell, where, I guess, I don’t have to be heard from or seen. The officers’ station is way near the stairs where I can’t really get to them. They don’t make constant rounds.”
He said he constantly tried to get the attention of officers or sergeants as they passed by, but all they would say is “sign up for sick call or medical call.” He signed up for mental health, and was seen by Nurse Polinsky. She came and gave him his medication, and explained that he had been assigned a psychologist and “he should be calling you down shortly, just hold on.” Mr Harris told her that he needed blood work for the Tegretol, and was worried about taking the dose given. His condition “worsened.” On February 2, 2002 Nurse Polinsky put in a “high priority referral to see the psych - because she felt . . .[his] medication was not working properly.” Notably, the progress note for that day indicates that Claimant refused his medication asserting that he suffered from headaches when he took Tegretol. [See Exhibit 4]. There is no indication that the nurse made any findings beyond referring him to the Doctor for evaluation of his medications. [id.]. There is a handwritten notation saying “Requested emergency treatment for suicidal tendencies and was denied.” [id.]. It is not clear from the document whether Claimant or the nurse made the notation, and since the document is not certified, the notation has little probative value.
Mr. Harris testified that on the next day, he was seen by a different nurse. [See Exhibit 5]. When he refused medication Nurse Furletti noted “complains that medication is too strong” [id.], and “put it in the box for the psych.”
When the psychiatrist saw him on February 4, 2002, Claimant again said “I can’t take the medication, it’s too strong.” [See Exhibit 6]. The psychiatrist indicated in the progress note that the Tegretol would be “discontinued due to persistent non-[compliance]” and that the writer would ask that Claimant be “scheduled for expedited call out within the next approximate 10 days.”
On February 18, 2002, Claimant said he “cut his wrist.” He said that thereafter, he saw the appointed psychiatrist Dr. Langbart, for the “first time.” [See Exhibit 7]. Dr. Langbart wrote in the Progress Note for the day that Claimant told him that his “chief complaint” on that day was that “. . . ‘[he] wanted to see somebody’. . . [and that] [i]t was for this reason that he scratched both wrists superficially . . . [Mr. Harris] was clear that suicide was not his intention.” [id.]. From the same progress note, it appears that in addition to interviewing Claimant, Dr. Langbart consulted Mr. Harris’s medical history, and made his own evaluation of Claimant and a “tentative” diagnosis: “1. Polysubstance Abuse; 2. ADHD; 3. Antisocial Personality Disorder.” [See id.]. Dr. Langbart wrote that he could not elicit evidence of classic symptoms of bipolar illness, and stated that “there is little evidence objective or subjective to suggest that Bipolar Illness is present nor that the Tegretol is particularly effective in treating his symptoms.” [id.]. As noted in the report and testified to by Claimant, a different prescription, one for Seroquel, was issued.
Claimant said he was sent back to the same cell, “there was still blood on the floor.” Claimant took the Seroquel, “was still receiving tickets, and never left that cell for a while.” Claimant testified that he had been filing grievances and complaints concerning his mental health problems continually, and also undertook the appeal mechanism for his last Tier II hearing, asserting always that he was not receiving proper mental health care. [Exhibit 8].
Notably, Mr. Harris wrote in an appeal form dated January 3, 2002 that he was not receiving proper medical care for his disability, and indicated that when he saw the doctor, “. . . [the doctor] put in for me to have a blood test to check my Tegretol level because I was taking 1200 mg when I was outside at Bellevue Hospital, but now I am taking only 600 mg which is the cause of my periodic outbursts. I have no control of this and I had requested to be placed back in m.o. status like I was on Rikers Island.” [see ibid.].
Finally, Claimant submitted a three (3) page exhibit of unrelated health records, including what appears to be the first page of a mental health summary entitled “Prison Health Services Department of Mental Health State Ready Patient - Mental Health Summary.” [Exhibit 9]. That document appears to be a form dated September 12, 2001, and notes that Mr. Harris is not housed in a “Mental Observation Unit,” receives “Tegretol 200 mg that his diagnosis then was Bipolar Disorder, and that he had made “suicidal gestures/attempts.” [See ibid.]. The second page is another document dated May, 1999, also a form from an uncertain source, indicating Claimant needs supervision because he is a danger to himself and others as well as treatment for a mental disorder. [ibid.]. The last page seems to be part of an isolated, undated, narrative report of some kind that by its terms seems to relate to his fitness to assist in his defense at his criminal trial. [ibid.].
Mr. Harris accurately pointed out that Correction Law §601
regarding the delivery and commitment of inmates requires that certain documentation follow the inmate moving to a state correctional facility, but there is no indication from this record that the correctional facilities did not have the appropriate records, or seek the appropriate records as needed. Claimant asks for damages in the amount of $8,000 and legal fees.
No other witnesses testified and no other evidence was submitted.
It is “fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons,” including proper diagnosis and treatment. Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied 76 NY2d 701 (1990).
In a medical malpractice claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A Claimant must establish that the medical care giver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. The “ ‘claimant must [demonstrate] *** that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his . . . injuries’ (Parker v State of New York , 242 AD2d 785, 786).” Auger v State of New York, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept 1976), lv denied 40 NY2d 804 (1976).
A medical expert’s testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).
If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State’s employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony. Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for ministerial neglect if its employees fail to comply with an institution’s own administrative procedures and protocols for dispensing medical care to inmates. Kagan v State of New York, 221 AD2d 7, 10 (2d Dept 1996).
In this case, only the testimony of the Claimant has been presented in support of any claim of malpractice. While the Court credits that an individual suffering from mental illness is often acutely sensitive to changes in temperament and personality that might result from changes in his medication, without additional testimony by an expert, Claimant’s own evaluation of what medications he should be prescribed and in what dosages, and his own assessment of their efficacy, cannot alone establish that improper care was given. No competent medical evidence was presented, through a treating physician or an expert witness whose opinion was based upon the available and complete medical records, to support the allegation of medical malpractice. While Claimant submitted scattered documentation noting varying diagnoses of his condition by the medical personnel who saw him, without explanation or foundation, a claim of medical malpractice does not lie here. Indeed, it is unclear if any of the documents submitted even relate to the care received in DOCS facilities. There is no medical evidence on any medical issue and thus no proof that accepted standards of care were not met. Accordingly, the claim of medical malpractice must be dismissed.
Additionally, from this record there is no indication that the actions of medical care givers amounted to simple negligence or ministerial neglect. Coursen v New York Hospital-Cornell Med. Center, supra; Kagan v State of New York, supra. After considering Claimant’s testimony as a whole, and in consideration of his somewhat incomplete description of his original reception at Downstate, and subsequent transfer to Auburn, it would appear that Claimant was continually seen by medical personnel -though perhaps not as frequently as he would have liked - his medical records were consulted and utilized by personnel from one institution to the next, and he received care, the quality of which cannot be determined by a layperson. His testimony as a whole was not internally consistent as to when he did, or did not, see medical personnel. It is difficult to evaluate whether there was any unreasonable delays when, by turns, Claimant made reference in his testimony to demanding treatment and then receiving it - again, maybe not to his liking - but receiving it nonetheless. To the extent the claim can be read to assert such theories, any cause of action for negligence or ministerial neglect is also dismissed.
Finally, viewed as alleging a cause of action for violations of the Constitution of the United States and that of the State of New York - namely cruel and unusual punishment prohibitions - as well as the Federal Americans with Disabilities Act (hereafter ADA), such a claim does not lie here. Although alleged violations of the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution may be pursued in a civil rights action brought pursuant to 42 USCA §1983, no such claim against the State of New York will lie in the Court of Claims for alleged violations of an individual’s rights under the United States Constitution [see Welch v State of New York, 286 AD2d 496, 498 (2d Dept 2001); Zagarella v State of New York, 149 AD2d 503 (2d Dept 1989); Davis v State of New York, 124 AD2d 420,423 (3d Dept 1986)], because the State is not a “person” amenable to suit pursuant to 42 USC §1983. See also De La Rosa v State of New York, 173 Misc 2d 1007 (Ct Cl 1997).
Additionally, the weight of authority suggests there is no private right of action for damages triggered by alleged violations of the ADA. Lugo v St. Nicholas Assoc., 18 AD3d 341 (1st Dept 2005); Tafari v State of New York, UID# 2004-031-156, Claim No. 109301, Motion Nos. M-68843, M-68630 (Minarik, J., November 23, 2004); Murray v State of New York, UID# 2003-032-534, Claim No. 103632, Motion No. M-67346 (Hard, J., December 31, 2003). The statute [see 42 USC §12101 et seq] provides for declarative or injunctive relief, and does not contemplate its use as the basis for a personal injury action. See 42 USC §§12188(a) and 2000a-3(a).
It is axiomatic that the Court of Claims is a court of limited jurisdiction that may only exercise jurisdiction in cases or controversies for money damages in which the State - or certain statutorily prescribed entities - is a party. Court of Claims Act §9. It does not render declaratory judgments except under very limited circumstances not present here. Court of Claims Act §9 (9-a). The Court does not have the power to grant equitable relief unless it is incidental to the primary claim for damages. Amberge v State of New York, 186 AD2d 962 (3d Dept 1992); Pryles v State of New York, 86 Misc 2d 205, 209 (Ct Cl 1975), affd 51 AD2d 827 (3d Dept 1976). Accordingly, that part of the Claim asserting violation of the ADA is dismissed for failure to state a cause of action upon which relief can be granted in this Court.
With respect to alleged violation of the New York State Constitution, the factors the Court must consider to determine if a cause of action for a State constitutional tort is properly brought in the Court of Claims are whether: (1) the applicable constitutional provision is self-executing; (2) monetary damage remedies further the purpose of the underlying constitutional provisions and necessarily assure its effectiveness; (3) the provisions are such that they impose a clearly defined duty on the State officers and/or employees; (4) declaratory and injunctive relief is inadequate; and (5) money damages necessarily deter governmental conduct and make the claimant whole. Brown v State of New York, 89 NY2d 172 (1996).
In New York, constitutional provisions are presumptively self-executing. Brown v State of New York, supra at 186. Violation of every self-executing provision will not always support a claim for damages however. Only where it is necessary to ensure the effectiveness and promote the purposes of the allegedly violated provision will a constitutional tort remedy be implied. Brown v State of New York, supra at 191.
Deliberate indifference to an inmate claimant’s medical needs to a degree that it constitutes cruel and unusual punishment in violation of prohibitions within the State Constitution has been found to be an actionable constitutional tort. De La Rosa v State of New York, supra; Davis v State of New York, 5 Misc 3d 1011(A) (Ct Cl 2004). Claimant has not, however, established deliberate indifference after a full trial of the matter, and accordingly, the cause of action premised upon constitutional tort cannot be sustained.

The Defendant’s motion to dismiss for failure to establish a prima facie case, upon which decision was reserved at the time of trial, is hereby granted, and Claim Number 106085 is dismissed in its entirety.
Let Judgment be entered accordingly.

June 13, 2006
White Plains, New York

Judge of the Court of Claims

[1]. All quotations are to trial notes or audio recordings unless otherwise indicated.
[2]. In context the statute appears to first place obligations on local facilities to have sufficient documentation upon the transfer into DOCS custody, and then imposes obligations upon State facilities to follow-up. The statute provides in pertinent part: “Whenever an inmate shall be delivered to the superintendent of a state correctional facility pursuant to . . . sentence, the officer so delivering the inmate shall deliver to such superintendent . . . a detailed summary of available medical records, psychiatric records and reports relating to assaults, or other violent acts, attempts at suicide or escape by the inmate while in the custody of the local correctional facility; any other medical or psychiatric records in the possession of a health care provider other that the local correctional facility shall be summarized in detail and forwarded by such health care provider to the medical director of the appropriate state correctional facility upon request . . . ” Correction Law §601(a).
[3].Additionally, there may be other relief available through a proceeding brought pursuant to Article 78 of the Civil Practice Law and Rules that could provide this Claimant with an alternative remedy, namely an order directing Defendant’s agents to consistently provide prescribed medical care to Claimant within applicable standards. See Domeneck v Goord, 20 AD3d 416 (2d Dept 2005).