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,
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
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
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,
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
prisons without undue delay (Kagan v State of New York, 221 AD2d 7
). 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 ). 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 ). 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 , quoting Tatta v State of
New York, 19 AD3d 817, 818 , lv denied 5 NY3d 712 ;
Wood v State of New York, 45 AD3d 1198 ).
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
[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 ; see also Winegrad v New York Univ.
Med. Center, 64 NY2d 851, 853 ). 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  citing Zuckerman v City
of New York, 49 NY2d 557, 562 ).
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 ; Malave v Basikov, 45 AD3d 539 ;
Thomas v Laustrup, 21 AD3d 688 ; see also Scaccia v
Degener, 207 AD2d 599 ; Briggs v Consolidated Rail Corp., 190
AD2d 1047 ). 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: