New York State Court of Claims

New York State Court of Claims

PICKELL v. THE STATE OF NEW YORK, #2009-015-111, Claim No. 113130, Motion No. M-75482


Synopsis


Claimant's motion for summary judgment in medical malpractice action was denied. Claimant's experts' affirmations/affidavit relied upon uncertified medical records. In any event, defendant's expert's affidavit submitted in opposition to the motion raised material questions of fact requiring a trial.

Case Information

UID:
2009-015-111
Claimant(s):
MARLENE PICKELL, as Administratrix of the Estate of LEONARD PICKELL, deceased, and MARLENE PICKELL, individually
Claimant short name:
PICKELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113130
Motion number(s):
M-75482
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Law Firm of Broder & Reiter
By: Jonathan C. Reiter, Esquire and Carol G. Stone, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Gregory P. Miller, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 2, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for partial summary judgment pursuant to CPLR 3212 on her claim for the pain and suffering and wrongful death of the decedent Leonard Pickell arising out of the alleged failure to provide the decedent proper diabetic foot care and treatment during the course of his prison confinement. The course of events allegedly started with a blister on the decedent's right big toe which became infected and, according to claimant's experts, culminated in several surgeries and the decedent's death by a massive pulmonary thromboembolism. Leonard Pickell was committed to the custody of the Department of Correctional Services in June 2005. He was transferred from Rikers Island Correctional Facility to Ulster Correctional Facility on July 8, 2005 at which time his medical history was recorded and it was noted that he had a history of diabetes, hypertension, hepatitis C, two herniated discs and a drop foot on the right (claimant's Exhibit R). He had been diagnosed with diabetes mellitus type II by his family physician in March 2005, prior to his incarceration, and was prescribed an oral medication to control his blood sugar. According to the testimony of Mr. Pickell taken pursuant to General Municipal Law § 50-h, he wore specially padded sneakers which had been recommended by his orthopedist prior to his incarceration (claimant's Exhibit I, p.18).[1] Upon his arrival at Ulster CF, prison authorities took these sneakers from him and issued prison boots and sneakers which were "hard" and hurt his feet (claimant's Exhibit I, p. 19). According to the uncertified medical records from Ulster CF, Mr. Pickell reported to the infirmary on July 13, 14 and 15, 2005 with a blister on his right great toe. The blister had broken and was cleaned and treated. By July 28, 2005 some areas of epithelization were noted as was "some central necrosis". Augmentin and Bactroban were prescribed to be used for ten days. He was seen in follow up on August 9, 2005 at which time central necrosis was again noted as was healthy granulation. Mr. Pickell was seen again on August 22, 2005 and August 24, 2005 and received prescription renewals and a blood pressure check although no foot assessment was performed. On September 2, 2005 gauze pads, Bacitracin and Motrin were provided. The infirmary record for September 8, 2005 notes the continued existence of the blister on Mr. Pickell's right foot and the development of a new blister on his left small toe. On this date it is noted that Mr. Pickell "needs diabetic foot care" and "special boots". He was continued on Bacitracin and provided a "sneaker pass" until his transfer to another facility. It is not known whether Mr. Pickell received special boots or sneakers and, if so, when they were provided.

Mr. Pickell was transferred to Groveland Correctional Facility on September 15, 2005. According to the uncertified records from Groveland CF (claimant's Exhibit S), Mr. Pickell was examined on that date and found eligible for employment as a food handler with no health-related limitations. The infirmary notes for September 15, 2005 do not reflect an examination of Mr. Pickell's feet. On September 16, 2005 Mr. Pickell's health record notes his concern regarding his ability to get to the mess hall and a history of a drop foot. Mr. Pickell was seen in follow-up on September 20, 2005 and a low bed permit was issued. On October 11, 2005 Mr. Pickell was admitted to the infirmary with "+3 pitting edema" on the right foot with foul smelling yellow drainage. He was placed in "contact isolation", the wounds were treated and bandaged and it was noted in the record that the inmate was unable to sit up in bed or stand without assistance. Another note later that same day indicates that Mr. Pickell was ambulatory to the bathroom with an excellent appetite. On October 13, 2005 Mr. Pickell was unable to sit or stand without assistance and a telemed conference was held by a facility nurse with a physician from Erie County Medical Center. The nurse was instructed to give Mr. Pickell "Rocephin 2 grams now then Keflex 500 mg QID for 10 days". The Keflex was immediately given and the nurse's note indicates that "Rocephin 2 grams ordered from Attica pharmacy- will start when available." By 10:15 p.m. on that same evening Mr. Pickell was noted to be moaning and unresponsive and an ambulance was called.

Mr. Pickell was taken to Wyoming County Community Hospital where extensive debridement with incision and drainage of the right foot was performed on October 17, 2005 and October 19, 2005. The hospital records, which are certified, reflect the claimant was in a "severe septic state" and that the surgeon recommended a below the knee amputation. On October 18, 2005 a sacral decubitus is noted (bed sore) with no necrosis or pus.

Mr. Pickell was transferred to Erie County Medical Center on October 22, 2005. The uncertified records from Erie County Medical Center reflect that Mr. Pickell was at a high risk for a below knee amputation (see claimant's Exhibit U). He was discharged to the Regional Medical Unit at Wende Correctional Facility on November 21, 2005 where he remained until his release from prison on August 21, 2006. He was seen by his family physician, Dr. Bernstein, on August 23, 2006 who noted Mr. Pickell's condition was "generally weak, difficulty w/ walking, unhealed ulcer on his back . . . multiple leg/foot surgeries for osteomyelitis w/ phalageal resections, also multiple surgeries for ongoing sacral ulcer, Hx MRSA skin infections" (see claimant's Exhibit Y).

On March 12, 2007 Mr. Pickell was admitted to a hospital in New Jersey for intravenous antibiotics and wound care (claimant's Exhibit W). On March 26, 2007 he was transferred to New York University Hospital For Joint Diseases where it was noted that he was a 52-year-old diabetic with a Charcot deformity and underlying osteomyelitis with open wounds (claimant's Exhibit BB). Mr. Pickell was offered the option of a below knee amputation and chose an attempted "salvage" in which the wounds on his right foot were irrigated and debrided, the ankle fused and an external fixation device applied.

On June 13, 2007 Mr. Pickell died. The death certificate indicates the cause of death as an acute myocardial infarction. Diabetes and Charcot joint are noted as conditions contributing to death but not as underlying causes (claimant's Exhibit DD). An independent autopsy performed by Louis S. Roh, M.D., who is Board Certified in Anatomic, Clinical and Forensic Pathology, indicates the cause of death was a "massive Pulmonary Thromboembolism, which was a direct result of the surgery on the right lower extremity" (claimant's Exhibit P, Affirmation of Dr. Louis S. Roh, ¶ 8).

In support of her motion for summary judgment, the claimant submitted affirmations from Jeffrey Levine, M.D. and Louis S. Roh, M.D. and an affidavit from Claire A. Hoffman, MS, RN-BC, CDDN, CLNC.

Dr. Levine is Board Certified in Internal Medicine with a specialty in geriatrics and wound care. Based on his review of the claimant's decedent's medical records, Dr. Levine rendered the opinion, with a reasonable degree of medical certainty, that the care and treatment provided to Mr. Pickell deviated from the accepted standard of medical care in several respects.

First, Dr. Levine stated the defendant deviated from the accepted standard of care for a diabetic patient by "failing to institute antibiotics on or about July 13, 2005", the date Mr. Pickell initially presented with a "toe ulcer" (claimant's Exhibit N, Affirmation of Jeffrey Levine, M.D., ¶ 17 [a]). He also opined that the defendant deviated from the accepted standard of care by failing to provide Mr. Pickell with proper diabetic orthotic footwear.

Dr. Levine indicated that Mr. Pickell's toe ulcer was allowed to worsen until July 28, 2005 when central necrosis was noted. He indicated that the accepted standard of care for a diabetic patient with "necrosis to the foot" was immediate transfer to a hospital for intravenous antibiotics and a surgical consult. In Dr. Levine's opinion, the defendant's failure to transfer Mr. Pickell at that time to a hospital was a deviation from the accepted standard of care (claimant's Exhibit N, affirmation of Jeffrey Levine, M.D., ¶ 17 [b]).

Dr. Levine opined that the defendant again deviated from the accepted standard of care on September 15, 2005 when the decedent was cleared to work as a "food service handler", at a time when he had "smoldering, weeping and infected ulcers on his foot, and clearly should not have been standing for long periods of time" (claimant's Exhibit N, affirmation of Jeffrey Levine, M.D., ¶ 17 [c]).

Dr. Levine further avers that the defendant deviated from the accepted standard of care on October 11, 2005 and October 13, 2005, when Mr. Pickell presented as being unable to walk, by failing to immediately hospitalize him for treatment with intravenous antibiotics and a surgical consult and by allowing him to go into septic shock (claimant's Exhibit N, affirmation of Jeffrey Levine, M.D., ¶ 17 [d]).

Finally, Dr. Levine testified that his opinion the negligence and medical malpractice of the State was a contributing factor and proximate cause of Mr. Pickell's injuries and death.

The affidavit of Claire A. Hoffman indicates that the defendant deviated from accepted standards of nursing practice by failing to: identify Mr. Pickell as being at an increased risk for developing diabetic foot ulcers and pressure ulcers; formulate a nursing diagnosis and an effective care plan; conduct an on-going assessment of the diabetic foot ulcer and/or sacral ulcers; inform the physician or the physician's assistant of the worsening condition; properly monitor the foot ulcers and sacral ulcers; recommend diabetic footwear; monitor Mr. Pickell's blood sugar levels at appropriate intervals and in failing to document any and all nursing care provided (see claimant's Exhibit O, ¶ 8).

Lastly, Dr. Roh rendered the opinion that based upon an independent autopsy he performed and a review of Mr. Pickell's medical records " the development and progression of the diabetic foot ulcer(s) and subsequent need for surgery on the right lower extremity was a substantial factor and proximate cause of Leonard Pickell's death from pulmonary thromboembolism" (claimant's Exhibit P, ¶ 7). He stated that "Leonard Pickell's death was caused by a massive Pulmonary Thromboembolism, which was a direct result of the surgery on the right lower extremity" (Id. at ¶ 8).

The State has the fundamental duty to provide adequate medical care to inmates in its

prisons without undue delay (Kagan v State of New York, 221 AD2d 7 [1996]). To succeed on a claim for negligence or medical malpractice it is incumbent upon the claimant to come forth with evidence of a breach in prison protocols or other evidence of a deviation from the appropriate standard of medical care (Trottie v State of New York, 39 AD3d 1094 [2007]). Where such a breach or deviation is established, liability does not attach absent competent expert evidence that the negligence or malpractice was a proximate cause of the inmates ensuing medical problems (id.; Lowe v State of New York, 35 AD3d 1281 [2006]). Thus "[w]hether the claim is grounded in negligence or medical malpractice, 'where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical . . . [opinion] is a required element of a prima facie case' " (Myers v State of New York, 46 AD3d 1030, 1031 [2007], quoting Tatta v State of New York, 19 AD3d 817, 818 [2005], lv denied 5 NY3d 712 [2005]; Wood v State of New York, 45 AD3d 1198 [2007]).

It is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978][citation omitted]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law "by tender of evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once the movant has made this showing, 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 of the action" (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986] citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

In support of her motion for summary judgment claimant proffered experts' affirmations and an affidavit which rely upon uncertified and unsworn medical records from Ulster Correctional Facility and Groveland Correctional Facility, the very facilities where the claimant alleges the malpractice occurred. Inasmuch as the claimant's experts relied upon the unsworn reports of others, their affirmations were without probative value (see Govori v Agate Corp., 44 AD3d 821 [2007]; Malave v Basikov, 45 AD3d 539 [2007]; Thomas v Laustrup, 21 AD3d 688 [2005]; see also Scaccia v Degener, 207 AD2d 599 [1994]; Briggs v Consolidated Rail Corp., 190 AD2d 1047 [1993]). Thus, the claimant failed to establish her entitlement to summary judgment as a matter of law.

Moreover, the affirmation of defendant's treating physician, Stanley L. Bukowski, M.D. submitted in opposition to the motion raises numerous triable issues of fact as to whether or not there was a breach of protocol or deviation from the accepted standards of care. Specifically, Dr. Bukowski avers contrary to Dr. Levine's affirmation that when Mr. Pickell reported to sick call on July 13, 2005 he did not present with a toe ulcer, he presented with a blister requiring no antibiotics (defendant's Exhibit 1, ¶ 42); that intravenous antibiotics were not required on July 28, 2005 because Mr. Pickell did not have central necrosis of the foot as indicated by Dr. Levine. Rather, the decedent presented with central necrosis of the toe surrounded by an area of healing for which antibiotics were not required (defendant's Exhibit 1, ¶¶ 43-44); that on September 15, 2005 when a health clearance was issued Mr. Pickell did not have weeping and infected ulcers on his foot as this condition was not noted in his medical records until October 11, 2005 (defendant's Exhibit 1, ¶¶ 45-46) and that admitting Mr. Pickell to the infirmary rather than transferring him to a hospital on October 11, 2005 was appropriate for his needs at that time.

Dr. Bukowski treated Mr. Pickell at the Regional Medical Unit at Wende Correctional Facility following his discharge from Erie County Medical Center and avers that when Mr. Pickell was released from custody on August 21, 2006 his health was substantially improved. He states that "[t]he open wounds on his right foot had closed and there was no osteomyelitis or other infections noted in his lower extremities" (defendant's Exhibit 1, ¶ 53). Dr. Bukowski reviewed the records of medical treatment rendered subsequent to Mr. Pickell's release from custody and noted that the record of treatment rendered by Dr. Bernstein on August 23, 2006 makes no mention of an abnormality of the right lateral malleolus or any other changes suggesting infection. He states that both the bone scan performed on September 28, 2006 and X-ray examination of both ankles on September 22, 2006 showed no evidence of osteomyelitis. However, a "new skin opening" on the right ankle was noted by Dr. Lopez on September 8, 2006, which was larger by October 23, 2006 and was noted to be three inches in size on November 24, 2006. By March 13, 2007 a "huge abscess" on the right ankle was noted and X-rays performed at New York University Hospital on March 26, 2007 indicated, according to Dr. Bukowski, that Mr. Pickell had severe neuropathic arthropathy with the possibility of osteomyelitis, which possibility was clinically confirmed by his drainage and debridement. Dr. Bukowski states his conclusion as follows:
"Based upon a review of Mr. Pickell's records included with the Claimant's summary judgment motion, it is clear that when he left the custody of the Department of Correctional Services in August 2005 the wounds on his right leg had closed and there was no infection or osteomyelitis and the osteomyelitis noted in his medical records in January 2007, and thereafter, occurred after he was released from the Wende Correctional Facility's RMU".

Putting aside the procedural deficiencies in the claimant's proof, the foregoing raises multiple issues of fact as to whether or not the defendant deviated from accepted standards of medical care and, if so, whether those actions constituted a proximate cause of Mr. Pickell's ensuing injuries and death following his release from custody on August 21, 2006. Summary judgment is inappropriate where there exists conflicting expert medical opinion regarding alleged negligent treatment (Graham v Mitchell, 37 AD3d 408 [2007]; Dandrea v Hertz, 23 AD3d 332 [2005]; Benfer v Sachs, 3 AD3d 781 [2004]).

The contention that a violation of protocol warrants summary judgment must also fail as the claimant failed to establish the violation of a nondiscretionary protocol or that any such violation was a proximate cause of the decedent's ensuing injuries and death. The purported protocol relied upon to establish ministerial negligence states in pertinent part the following:
"Inmates with foot related medical concerns should bring them to the attention of facility health staff at sick call. Medical problems warranting the issuance of special order or prescription footwear include foot deformities and other conditions (such as diabetes, surgical cases, etc.) where, in the clinical judgement of the Facility Health Services Director (FHSD), the wearing of basic state issue footwear is medically inadequate or inappropriate" (claimant's Exhibit H).
The aforementioned footwear policy requires the exercise of the "clinical judgement" of the Facility Health Services Director and is therefore not a nondiscretionary medical standard which may form the basis for liability on a theory of ministerial negligence (cf. Kagan v State of New York, supra). Additionally, claimant failed to establish as a matter of law that once it was determined that basic state issue footwear was inadequate, that there was an undue delay in providing appropriate footwear (cf. Verizon N.Y., Inc. v Village of Athens, 43 AD3d 526 [2007]) and that any such delay was a proximate cause of the decedent's ensuing injuries and death (Trottie v State of New York, supra).

Based on the foregoing the claimant's motion for summary judgment is denied.


January 2, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

  1. Notice of motion dated August 28, 2008;
  2. Affirmation in support of Jonathan C. Reiter dated August 28, 2008 with exhibits;
  3. Memorandum of law of Jonathan C. Reiter dated August 28, 2008;
  4. Affirmation of Gregory P. Miller dated September 26, 200[8] with exhibit;
  5. Affirmation of Carol G. Stone dated October 9, 2008 with exhibits.

[1]. It is unknown why the State of New York appears in the caption of the § 50-h transcript inasmuch as the hearing appears to have been held at the request of Wyoming County Community Hospital (see claimant's Exhibit I).