Correspondence dated December 4, 2008 from Edward F. McArdle, Esq., Assistant
Attorney General, with Attachments 7
In his filed claim, claimant seeks damages allegedly resulting from medical
malpractice and/or negligence for medical treatment provided to him at a time
when he was an inmate incarcerated under the care and custody of the Department
of Correctional Services (DOCS). These allegations of malpractice and/or
negligence are related to medical treatment that claimant received, beginning in
March, 2001 “for a cold, pulseless and numb foot” (see claim, par.
8). At that time, claimant was incarcerated at Watertown Correctional
Facility. Subsequently, surgery was performed on May 8, 2001 by Dr. Simon Drew
at Samaritan Medical Center in Watertown in an attempt to correct this medical
problem. Claimant was returned to Watertown Correctional Facility following
surgery, and he continued to receive medical care and treatment for this
condition from DOCS medical providers until his release from custody.
Defendant had initially brought a pre-answer motion (Motion No. M-67787) to
dismiss this claim, contending, among other things, that there could be no
liability against the State, since the alleged acts of malpractice were
performed at an outside facility by a physician who was not a State employee.
By a Decision and Order dated June 15, 2004, this Court denied defendant’s
motion, without prejudice, on the basis that, with regard to this contention,
defendant had not established the lack of a formal employment relationship
between the State and Dr. Drew, and that the claim could also be interpreted to
contain allegations of medical malpractice and/or negligence pertaining to
claimant’s follow-up care provided at the correctional
Discovery has now been completed, a Note of Issue and Certificate of Readiness
has been filed (May 8, 2008), and defendant now seeks summary judgment
dismissing the claim, based essentially on the same grounds as previously
asserted in its motion to dismiss.
Summary judgment is a drastic remedy which deprives a party of its day in court
and should not be granted where there is any doubt as to the existence of a
material issue of fact (Moskowitz v Garlock, 23 AD2d 943). On a motion
for summary judgment, the Court’s function is to determine if such an
issue exists, and in doing so, the Court must examine the proof in a light most
favorable to the opposing party. Summary judgment may only be granted if the
movant provides evidentiary proof in admissible form to demonstrate that there
are no material questions of fact or demonstrate an acceptable excuse for the
failure to submit such proof (Winegrad v New York Univ. Med. Center, 64
NY2d 851). Once a movant has demonstrated a prima facie entitlement to
summary judgment as a matter of law, the burden then shifts to the opposing
party which must submit evidentiary proof in admissible form sufficient to
create an issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320). Mere
conclusions, speculations or expressions of hope, however, are insufficient to
defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).
With respect to the instant claim, and this motion for summary judgment,
defendant has submitted the Affidavit of Tracey Gecewicz, the Assistant Director
of Health Services for the New York State Department of Correctional Services.
In this Affidavit, Ms. Gecewicz states that she has examined records maintained
by DOCS Health Services related to physicians and health care providers, and
finds no record of any employment or contractual relationship between DOCS and
Dr. Simon Drew. Additionally, Ms. Gecewicz found no record of any contract
between DOCS and Samaritan Medical Center with regard to the provision of health
The Court has reviewed claimant’s response to this motion (Items 4,5,6),
as well as claimant’s Verified Bill of Particulars and his responses to
defendant’s discovery demands (Exhibits D and F to Items 1,2,3). Based on
this review, the Court finds no indication that this claim of medical
malpractice and/or negligence is based upon the medical care or treatment that
claimant received at Watertown Correctional Facility or any other correctional
facility. Rather, it is apparent that this claim is based solely upon
allegations that the surgical procedure performed by Dr. Drew at Samaritan
Medical Center on May 8, 2001 was negligently performed. There are no
allegations of medical malpractice and/or negligence prior to this procedure
(such as a mis-diagnosis or delay in diagnosis), and although claimant has
alleged that he has continued to receive follow-up care for the condition
allegedly caused by this malpractice, there are no allegations that such
treatment has been negligently or improperly performed.
As stated by this Court in its Decision and Order to defendant’s original
motion to dismiss, the State has a well-established duty to provide reasonable
and adequate medical care to those inmates incarcerated in its facilities
(Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701).
However, it is also established that when a prison inmate receives medical
treatment from an outside physician at an outside medical facility, where there
is no contractual relationship between either the physician or the facility with
the State, any malpractice which occurs during that treatment does not give rise
to a claim against the State (Rivers v State of New York, supra;
Williams v State of New York, 164 Misc 2d 783).
Claimant contends that he had absolutely no input as to the medical care and
treatment provided to him, since he was an inmate, and the defendant had assumed
and directed all such medical care. Claimant therefore argues that the State
should be liable and responsible for the care provided, since the State, and not
claimant, made all decisions in scheduling his surgical procedure. As set forth
above, however, where the State does not exercise any control over the treatment
provided to claimant, there can be no State liability.
Based upon the foregoing, therefore, it is
ORDERED, that Motion No. M-75396 is hereby GRANTED; and it is further
ORDERED, that Claim No. 108499 is hereby DISMISSED.