New York State Court of Claims

New York State Court of Claims

CARTIER v. THE STATE OF NEW YORK, #2009-030-019, Claim No. 113515


State of New York 70% liable for any harm suffered by claimant as a result of negligent failure to protect claimant from a battery committed upon him by a fellow inmate. Seven causes of action asserted premised upon alleged negligent exposure to HIV/AIDS by State personnel during clerical work assignment of inmate claimant. Negligent infliction of emotional distress cause of action on AIDS-phobia theory dismissed because no expert testimony presented to establish that a medically accepted channel for transmission of virus

Case Information

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Signature date:
July 2, 2009
White Plains

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See also (multicaptioned case)


Andre Cartier alleges in his claim that while he was an inmate in the custody of the New York State Department of Correctional Services [DOCS] at Sing Sing Correctional Facility [Sing Sing], he was negligently exposed to HIV/AIDS by state personnel during his clerical work assignment at the facility’s infirmary. More specifically, on April 4, 2006 Mr. Cartier alleges he was ordered by medical and security staff to assist them in returning a disorderly inmate to his bed. In the process, the inmate, who suffered from HIV, threw blood on claimant. The claim sets forth seven (7) causes of action, including common law negligence, failure to maintain a safe workplace, breach of ministerial duty, battery, intentional and negligent infliction of emotional distress, and denial of mental health treatment. The cause of action for intentional infliction of emotional distress has been withdrawn. Trial on the issue of liability was held on March 17, 2009. This decision relates only to liability.

Mr. Cartier testified on his direct case, and put into evidence the deposition transcripts of Correction Officer Marcy Brown, Dr. Mikulas Halko, Nurse Patricia Conklin, and PA Phillip Williams. The State cross-examined claimant and, after moving to dismiss the claim, also presented the testimony of PA Williams.

Mr. Cartier testified that at the time of this incident, he had been employed at the Sing Sing facility hospital as a clerk/typist as part of his assigned inmate program, which he described as “mandatory.”[1] He said that his work duties included “filing, laundry, blood spills, feed up, taking care of the library.” This description of his duties was memorialized in an inmate progress report dated March 6, 2006, wherein Mr. Cartier was given an excellent rating by Officer Brown, his supervisor. [Exhibit 17]. He was required in his job to clean up blood spills as directed. He was also required if directed to clean up “active blood”, which he defined as “blood that is being thrown or moving.” In terms of “static blood” he took a course on blood spills, reported on his resume as having been taken in 2005. [Exhibit A]. He indicated that he was familiar with the job of nurse’s aide/health assistant, and confirmed that at the time of the incident, that was not his job title, although he did acquire the job title of health aide ten (10) days after the incident.[2] As identified by Mr. Cartier, a portion of the DOCS Health Services Policy Manual submitted describes the duties of inmates working as health aides or health assistants, as well as the limitations imposed on such aides. [Exhibit 3]. PA Williams also identified this job description as applicable in April 2006 in his deposition testimony. [Exhibit 31]. Among the work duties inmates working in the health unit were prohibited from “performing” were “direct patient services.” [See Exhibit 3].

Officers Brown and Harvey were Mr. Cartier’s supervisors. Claimant testified he did not get orders directly from medical personnel, rather medical personnel “would have to talk to security first and security would give me the order.” If he were to disobey any orders, whether from medical staff or correction officers, he would be in violation of prison regulations, and could suffer disciplinary infractions. [See Exhibit 2]. Officer Brown confirmed in deposition testimony that when an inmate is told to do something, he does it. [Exhibit 32].

The second floor infirmary included an isolation room where inmate Charles Sturdivant was located. [See Exhibit 29]. It was utilized for those who could not be placed in population for some medical reason, such as having tuberculosis. The isolation room had two doors, both locked by the correction officers. The nurse’s station was directly across from the isolation room, in the same corridor. Protective equipment, including gloves, masks, gowns and booties could be found there however, inmates were prohibited from entering the nurse’s station. The inmate station where Mr. Cartier worked was just around the corner from the corridor containing the isolation room and the nurse’s station. At the inmate station, latex gloves were kept as protective equipment. Correction officers had an office at the far end of the corridor off which the isolation room and nurse’s station were located, near the elevator entry point to the second floor infirmary.

The isolation room itself contained a bed, a shower stall with a bench, and a toilet. [Exhibit 16]. Nurse Head was the nurse in charge of the second floor infirmary and was present on April 4, 2006, as was PA Williams, who was the physician’s assistant for the second floor and for the hospital.

On April 4, 2006 Mr. Cartier arrived at the second floor infirmary with three (3) other inmates: Dukes, Alston and Branch. When they arrived he saw Officer Brown, who told him to drop his things and come with her to Mr. Sturdivant’s room. He was wearing latex gloves - given to him by Officer Brown - and the “regular uniform” all inmates wore. He was wearing his prescription eyeglasses. No additional equipment was issued to him, nor did he ask for any.

As he went into the room, he saw that the room was in disarray. There was blood all over the floor, the walls and the sink, and Mr. Sturdivant was lying on the side of the room between the toilet and the wall. Nurse Head was in the room. PA Williams entered the room and began talking to Mr. Sturdivant. Mr. Cartier was standing near Mr. Sturdivant and was trying to help PA Williams to get Mr. Sturdivant off the floor. Mr. Cartier testified that they were able to get Mr. Sturdivant up, and it seemed like he was calming down, but then he started ranting again and backed himself in to the shower area of the room. As he backed in, he put his hand to his face as if he was trying to stop the blood. At that point, he “threw blood” into claimant’s face. Mr. Cartier did not know why Mr. Sturdivant was ranting incoherently at the time, nor did he know what Mr. Sturdivant’s illness was, specifically he did not know then that Mr. Sturdivant had HIV/AIDS. According to DOCS medical records, Mr. Sturdivant was symptomatic for HIV effective February 24, 2003 and March 1, 2004, and was noted in entries made by State personnel as suffering from AIDS-related dementia and hallucinations involving acting out. [See Exhibits 26 and 27].

Almost immediately after Mr. Sturdivant splattered blood on Mr. Cartier, PA Williams directed claimant to leave the room. As he left, he met an Officer Williams. Her role in the correctional facility, Mr. Cartier said, was “to assess all correction personnel who have been exposed to blood.” She looked at him and told him to go to the shower and then downstairs. At trial, Mr. Cartier recalled that he had a metallic taste in his mouth. When he took his shower, he utilized mouthwash. The clothing he took off was covered with blood as were his eyeglasses.

He then saw Nurse Conklin for an assessment and she sent him to Dr. Halko. Dr. Halko, Mr. Cartier said, prescribed “prophylactic medication due to potential exposure to AIDS/HIV blood.” Such prescriptions included Lexiva, Ritonavir, and Truvada, all to be taken for a period of thirty (30) days. [See Exhibit 4]. A report of inmate injury form was prepared and signed by claimant and Nurse Conklin. [Exhibit 14].

Claimant filed a grievance with regard to what he alleged was the unsafe exposure to blood and being asked to perform work he was not trained to do. [Exhibits C and 7]. At the institutional level, the Superintendent accepted the grievance to the extent that the
“officer on duty did mistakenly direct the grievant to assist in getting another inmate into bed . . . [noting] that the officer acted under the belief [that] the grievant, as well as all others assigned to the area, were trained to give assistance”

but found that given the exigencies of the situation, Mr. Cartier’s apparent competence observed by the officer on prior occasions and his failure to indicate that he was not trained to do such work, it was reasonable for the correction officer to seek Cartier’s assistance. [Exhibit 7]. Mr. Cartier’s grievance request that all such problematic inmates be moved elsewhere, and for compensation, was denied. [Ibid.]. At the State level, the superintendent’s decision was upheld. [Exhibit 8].

Referring to the inmate progress report prepared by Officer Brown, Mr. Cartier reiterated on cross-examination that blood spill clean ups were included in his duties on April 4, 2006. [Exhibit 17]. The inmate progress report also includes in the general comments section that Mr. Cartier had “no problem with any assignment given to him, and needs, if any, the bare minimum of instructions to complete his task.” [Ibid.]. He agreed that prior to April 4, 2006 he had not complained about any assigned task in the hospital area, nor had he ever filed a grievance concerning improper training prior to April 4, 2006. He had assisted inmate patients, generally by bringing and taking food trays, and making beds, but denied having pushed inmates in wheelchairs.

Prior to April 4, 2006 he had seen blood in the hospital and had cleaned blood spills. In addition to receiving a training certificate in cleaning blood spills in 2005, he also received training directed to AIDS/HIV awareness. [Exhibit A]. He received a “Certificate of Competency Aids Awareness” in March 1997, a “Certificate of Completion” from the “Altamont Program, Inc.” in July 1998 and a “Certificate of Attendance” for another AIDS-related program in July 2001.

As part of the blood-spill training, Mr. Cartier acknowledged that he learned how to protect himself from blood-borne illnesses, including availing himself of safety equipment when cleaning up a blood spill. He stated that “blood kits” were held at the nurse’s station or by the correction officers. Inside the blood kit were gloves, booties, gowns, bleach, and paper towels. He denied that each inmate responsible for cleaning blood spills was given a blood kit, and claimed that he was never told as part of his training that if he were asked to clean a blood spill, he should go to the nurse’s station and ask for the blood kit. He said that “the officer would either come to us with it, but we were not supposed to come near that nurse’s station.” If he saw a blood spill, however, he agreed he could go to the correction officer and say “hey I need a blood kit, and they would then bring it and issue certain things and bring it back.”

On April 4, 2006 he confirmed that three other inmates were working in the area as well. [See Exhibit 10]. He would not say that he had more experience working in the medical unit than these other inmates, saying that Mr. Alston actually had more because he had worked in the medical unit at another facility. He ultimately agreed, however, that he did have more experience at Sing Sing than the other inmates.

When he got to Mr. Sturdivant’s room he reiterated that he saw blood on the inmate and on the floor, and was thereafter ordered into the room. Claimant denied that Mr. Sturdivant only started bleeding when he went into the shower area and banged his head against the wall. He understood it to be an emergency situation when he went into the room, but could not say one way or the other whether he felt speed was important, or whether his eyeglasses offered sufficient protection. Nurse Head and PA Williams were already in the room when he got there. Neither wore a protective mask.

The portion of the inmate injury report [Exhibit 14] completed by claimant does not say anything about blood in his mouth, or that his lips were chapped or cracked, nor are such notations made by Nurse Conklin in her portion of the report, in claimant’s ambulatory health record [AHR]. [Exhibits 14 and 9]. Nurse Conklin wrote, in the section entitled “nature of injury,”
“Washed off immediately - shirt changed. Dr Halko conferred with Dr. Perelli - inmate not sure if blood exposure to buccal cavity (no open wounds).” [Exhibit 14].

Nurse Conklin testified at her deposition [Exhibit 30] concerning the incident of April 4, 2006, by utilizing the applicable portion of Mr. Cartier’s AHR [Exhibit 9], and the report of inmate injury form [Exhibit 14] that she and Mr. Cartier completed. She explained at her deposition that the AHR notes she wrote for April 4, 2006 in the subjective portion reflect what Mr. Cartier reported to her at the time, namely “blood exposure with another inmates (sic) blood” as well as concerns as to whether blood had gone in his mouth. [Exhibit 30]. A blood sample was sent to the lab.

In her deposition Correction Officer Marcy Brown said that there were distinctions between the relative responsibilities of those employed by DOCS as correction officers and those employed in health services, confirming the distinctions also mentioned by claimant. [Exhibit 32]. Officer Brown expressed herself as having seen facility directive #2121 entitled Personal Protective Equipment, and knew that it required that all workers - including inmates - who were engaged in a task involving an infectious substance (which she agreed could include blood) be supplied with personal protective equipment. [See Exhibit 11]. She indicated that she supplied Mr. Cartier with gloves that day, but said that it would be the responsibility of the health services group to supply personal protective equipment generally. Officer Brown agreed that in accordance with his assigned tasks as a clerk, claimant should not have been in a situation where active blood was being tossed out of a body.

Officer Brown was familiar with Mr. Sturdivant prior to the incident, and thought he had been in the infirmary floor for a few weeks. Based upon reports from nurses, she was aware of his having made threats to other inmates, and that he could become violent. She herself had heard him declare that there were other people in the room when there were none, and would try to attack these imaginary people. When she went to his room that day because his room alarm was ringing, it was with the precautionary thought that he might assault or threaten assault on a nurse or other medical provider, though she herself had never been threatened or been close enough to actually be assaulted.

With some minor discrepancies, she essentially described the incident between claimant and Mr. Sturdivant in much the same way that Mr. Cartier had described the incident, to the effect that Mr. Sturdivant was on the floor when they arrived, that he was already bleeding from his nose at the time, that he “put his fingers to his face, to his nose, and threw it [blood]” at claimant [Exhibit 32], and that there was blood splatter on the walls of Sturdivant’s room, on the floor, and on his gown. She recalled that she and Mr. Cartier left the room immediately thereafter and went to the emergency room. She did not recall whether claimant took a shower before going downstairs.

During his deposition [Exhibit 31], PA Williams indicated that a health unit inmate assistant might be exposed to blood splatter, and that the health services department would be responsible for providing personal protective equipment. At first PA Williams had a “vague recollection” of inmate Sturdivant, but then recalled the incident after reviewing the Superintendent’s decision on claimant’s grievance. [Exhibit 7]. He did not remember how he was called to the room, but believed that Nurse Head had called him. His recollection was that Sturdivant was in the shower stall when he walked in, and he remembered the inmate porter - presumably Mr. Cartier - being present, as well as one or two officers. He did not remember whether any correction officers wore masks, but “believed” they had gloves on, just as he “believed” that he wore gloves and a gown, but no mask. He saw Sturdivant spit blood at the inmate porter. When asked, “did there come a time when you gave an instruction to the inmate porter to do something?” he answered: “Any time he has a significant exposure as far as blood, I always advise him to be evaluated for a significant exposure.” [ Exhibit 31]. Asked “did you tell him to go wash his face and take off his shirt?” he answered: “I may have told him that, certainly.” [Ibid.]. The matter was not pursued further during the deposition, except that PA Williams was asked whether he witnessed the officers securing control over Mr. Sturdivant, and he responded that he did. He was also asked whether Mr. Sturdivant “sprayed blood on them” and he responded “I don’t remember them being exposed to any significant exposure, blood splatter exposure.” [Ibid.]. This was followed by the final question posed during the deposition: “Did he spit in their face again?” to which PA Williams responded with “No, I don’t believe he did.” [Ibid.].

Dr. Halko interpreted his handwritten notations to claimant’s AHR for April 4, 2006 [Exhibit 9] during his deposition [Exhibit 28]. There is an indication in the first part of the AHR note that he gave Mr. Cartier a physical examination, but it was not discussed at the deposition, and there is a note about prophylactic prescription for HIV exposure. [See Exhibit 9]. Dr. Halko read the carry-over portion of the notation, explaining that under “subjective” he wrote “HIV exposure” and that he had consulted with an infectious disease specialist to obtain advice. At the specialist’s suggestion, he prescribed Truvada, Lexiva and Norvir for a period of thirty (30) days [Exhibit 4], bearing in mind that the “patient who was spitting that blood, that was splattering fluid” was receiving other drugs. Dr. Halko said:
“When there is an exposure the treatment of the exposed person depends not only on his own immune status and disease, whatever he has or not, but also on what medication is that person who is causing exposure.” [Exhibit 28].

Dr. Halko agreed that the side effects for the prescribed drugs would be as stated in the Physician Desk Reference [PDR], and identified pages of same. [Exhibit 25]. Utilizing the PDR, he agreed that common side effects for Truvada include “feeling very weak” and “irregular heartbeat”; that common side effects for Lexiva include nausea, vomiting and diarrhea; and that the PDR page shown listed common side effects associated with Norvir (without specifying what they were). [Exhibits 25 and 28].

Mr. Sturdivant’s medical record contains PA Williams’ note dated April 4, 2006 providing that he was called to assess Mr. Sturdivant at 7:20 a.m. and found him “standing in the room shower bleeding from [left] eye. Patient spat blood at [inmate] helper standing nearby. Room was in disarray and smeared blood noted on the floor, walls and bedding . . . ” [Exhibit 27]. It is also noted that entries in Mr. Sturdivant’s medical record include “3/27/06 . . . ambulating with assist[ance] of porter, Nosebleed noted this AM”; “3/28/06 . . . Assisted to bathroom by porter . . . ”; and “3/30/06 . . . Ambulating with assistance of porter.” [Ibid.]. Frequent nosebleeds are recorded, as well as hallucinations, and outbursts. [Ibid.].

A memorandum from Nurse Hansen, dated April 25, 2006 and prepared in connection with claimant’s grievance, provides:
“Mr. Cartier did indeed have contact with bodily fluids on April 4, 2006. He was directed by Officer Brown to assist the medical staff in an emergency.

Mr. Cartier was assigned as the clerk/typist as he states. He should never [have] been involved in any patient care.

His exposure to the bodily fluids of the patient was minimal and not considered to be a high risk exposure . . . However, as with any exposure we followed the Department’s protocol and initiated prophylactic treatment.

There is eye protection and proper gowns and clothing available to all personnel on the hospital floor as per Infectious Disease Policy and ACA standards. Sing Sing follows the NYS Policy and Procedure for Blood Spill clean up.” [Exhibit 6].

Numerous complaints concerning the side effects from the medication are noted in claimant’s AHR, starting with nausea on April 6, 2006, and on April 10, 2006; headaches, poor sleep, syncope, numbness to tongue and lips on April 20, 2006, chronic headache on May 2, 2006; diarrhea and cramping and headaches on May 15, 2006, when prescriptions ended on or about May 4, 2006. [See Exhibit 9]. There are no indications that claimant complained of any distress other than physical distress in his AHR as submitted, nor did he testify as to any mental trauma.

After the claimant rested, defendant moved to dismiss the claim based upon a purported failure to establish a prima facie case. The Court reserved decision on the motion at that time.
It is axiomatic that the State owed claimant a duty of providing a reasonably safe work environment while claimant worked at his job assignment in the infirmary. While not an insurer, the State nonetheless owed claimant a duty to adequately train and supervise him in the performance of his job assignment, to follow its own regulations and policies, to keep claimant free from foreseeable assaults or attacks by fellow inmates, and to give him adequate medical or psychiatric care. Injuries proximately caused by a breach of such duties are compensable.

As an initial matter, under current law, in order to establish liability for negligent infliction of emotional distress under an AIDS-phobia theory a claimant who has not tested positive for HIV must establish (1) actual exposure to HIV/AIDS through the defendant’s negligence, and (2) a medically accepted channel for the transmission of the virus in order that the fear of contracting the disease have a reasoned rather than an irrational basis. See Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1 (2008); Siegrist v State of New York, 55 AD3d 717, 718 (2d Dept 2008); see also Brown v New York City Health & Hosps. Corp., 225 AD2d 36, 45 (2d Dept 1996).[3]

Upon review of the evidence submitted on claimant’s direct case, including listening to the claimant testify and observing his demeanor as he did so, the Court finds that claimant has not established the requisite elements of an AIDS-phobia cause of action. The Court finds that claimant was required to establish, by expert medical testimony, that the alleged exposure by mouth to infected blood presented a medically accepted channel of transmission. To find liability on the evidence presented here would be far too speculative, including what appears to be an approach by claimant to establish essential elements of his claim via judicial notice or via the view that the mechanics for the spread of this virus is a matter of common knowledge using material outside of the record.[4] The mechanism of any disease process, even the common cold, falls within the realm of medical expertise.

A part of the resolution of this claim rests upon the credibility of the claimant and the weight of the evidence he presented to substantiate his claim. Resolving issues of credibility is the province of this Court as the trier of fact. LeGrand v State of New York, 195 AD2d 784, 785 (3d Dept 1993), lv denied 82 NY2d 663 (1993); Newland v State of New York, 205 AD2d 1015 (3d Dept 1994).

This claimant presented as a very intelligent and capable individual. He was better trained, seemingly, than the person supervising him with regard to exposure to blood, whatever his job title may have been. Indeed, within ten (10) days of this incident, he became a health aide and continued to work in the hospital throughout his incarceration. Based on this clear intelligence and his demeanor, his testimony at trial seemed tailored to the deficiencies in his own medical record. For example, the barest review of claimant’s AHR would show the reader that medical personnel did not see any open wounds or other indicia of an access point for blood and saliva from Mr. Sturdivant. Similarly, the portion of the report of inmate injury form he completed said nothing about blood entering his mouth. Since Nurse Conklin was not a witness to the incident, what she wrote down had been related to her by the claimant. Accordingly, testimony about blood in the mouth was offered at trial, when no other witnesses observed same. Notably, he did not testify as to any distress either physical or mental, and the portion of the AHR submitted indicates that from the time he was prescribed the precautionary medication, he complained regularly about physical discomfort of one kind or another.

Claimant has certainly shown that there was a source for HIV/AIDS in Mr. Sturdivant - an element lacking in the Siegrist v State of New York, supra, AIDS-phobia claim - and has minimally established that he had an exposure of a kind if, for the sake of argument, his trial testimony concerning blood in his mouth is credited. He has not, however, established a medically accepted channel of transmission through an expert witness. Such expert testimony as an item of proof is clearly presumed in Siegrist v State of New York, supra, and more specifically referenced in Ornstein v New York City Health & Hosps. Corp., supra, and elsewhere, [see Montalbano v Tri-Mac Enters. of Port Jefferson, 236 AD2d 374 (2d Dept 1997)],[5] if only to avoid the warning of Brown v New York City Health & Hosps. Corp., supra, to the effect that such cases be based on science, rather than public perceptions and fears as to the manner in which the virus spreads.

Moreover, unlike a type of case where it is the defendant’s actions in failing to preserve the needle evidence, for example, that prevented a litigant from establishing the two prongs of an AIDS-phobia cause of action, creating a “special circumstance,” [see Harris v State of New York, 187 Misc 2d 512 (Ct Cl 2001)],[6] here it is claimant’s own failure to present expert evidence to establish the necessary nexus as to the level of danger of the putative exposure, and the medically accepted channel of transmission that has created a failure of proof.

The deposition testimony of the medical witnesses merely provided that claimant was prescribed medication for a period of thirty (30) days as a precautionary measure perhaps based upon regulatory policy (and perhaps based upon medical indicia). This disjointed deposition testimony as to why medical personnel were taking such actions was minimal and, indeed, the significant questions were simply not asked in order to allow the leap urged here.

For the foregoing reasons, any cause of action premised upon negligent infliction of emotional distress on an AIDS-phobia theory is dismissed.

As to other causes of action asserted in the claim, as an initial matter, no evidence was offered concerning any purported failure to provide psychiatric care, thus that cause of action is dismissed.

To establish a prima facie case of negligence generally the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence. With respect to establishing liability on the State’s part for an assault (or battery) by a fellow inmate, claimant must allege and prove that the State knew or should have known that there was a risk of harm to the claimant that was reasonably foreseeable and inadequately addressed. Sanchez v State of New York, 99 NY2d 247, 253 (2002). “Battery is the intentional physical contact with another person without that person’s consent.” Coopersmith v Gold, 172 AD2d 982, 984 (3d Dept 1991), quoting Mason v Cohn, 108 Misc 2d 674 (New York Co Sup Ct 1981); see Clayton v Keeler, 18 Misc 488 (New York Co Sup Ct 1896).

Claimant was ordered to intervene in accordance with a direct order by a correction officer in contravention of health services policy that witnesses reported was in effect, and prohibited direct contact with patients. Ordering claimant to enter Mr. Sturdivant’s room without providing him with proper protective gear, as well as ordering him to enter the room with the knowledge that this particular patient was “trouble”, was negligent under these circumstances. Inmates - even inmates working as health aides - were not supposed to handle patients directly. It was reasonably foreseeable that this patient could be combative and that patients in the infirmary might have blood on them (indeed, Mr. Sturdivant’s medical record notes numerous nosebleeds). Having placed claimant in the position of assisting in a job that would expose him to foreseeable risks, defendant was under an obligation to provide him with the proper equipment. All witnesses agreed that Mr. Cartier could only obtain protective equipment via State personnel. Inmates were not allowed near the nurse’s station, wherein the majority of the protective gear was held. The only safety equipment readily available to inmates without the intercession of State personnel were latex gloves. While it appears that even the State personnel who were acting quickly to calm down an excited and combative patient did not fully secure their own safety gear, since claimant should not have participated in the restraint of Mr. Sturdivant in the first place, even this implication that an emergency was presented is really not dispositive with regard to the duty owed to claimant and its breach. When a medical emergency is presented, it should be medical personnel who respond. When a security emergency is presented, it is the correction officers - not an inmate subject to discipline - who should intercede to restrain a patient.

By the same token, claimant was fully capable of asserting himself and requesting gear that might be necessary, such as the blood kit or any of its contents. Thus whatever injuries he suffered (which seem to be limited to the side effects from the drugs prescribed) are also a result of his own conduct. While it is true that inmates must obey the direct orders of correction officers, this particular correction officer was well known to him, and had given him high marks in job performance. Moreover, this claimant is not a timid individual and is fully capable of asserting himself.

Based on the foregoing, the Court finds that the State is 70% liable for any harm suffered by claimant as a result of its negligent failure to protect him from a battery committed upon him by a fellow inmate, and that claimant is 30% responsible for any harm that befell him.

The Clerk of the Court is directed to enter interlocutory judgment on the issue of liability in accordance with this decision. All trial motions not otherwise disposed of are herewith denied. Trial on the issue of damages will be scheduled as soon as practicable.

July 2, 2009
White Plains, New York

Judge of the Court of Claims

[1]. All quotations are to trial notes or audio recordings unless otherwise indicated.
[2].A computer printout listing all the programs Mr. Cartier was assigned to shows he was identified as a clerk/typist in the medical services “shop” from September 20, 2004 to May 29, 2005; as an administrative clerk in medical services from May 30, 2005 to August 28, 2005, and again as an administrative clerk from August 29, 2005 to April 23, 2006.[Exhibit 13]. From August 29, 2005 to October 30, 2005 he is also listed as a student in college. [Ibid.]. Claimant testified that he had not been certified as a nurse’s aide or health assistant on April 4, 2006, and sought and received confirmation of that fact in a memorandum from his counselor, D. Merriett, dated August 30, 2006, obtained during grievance proceedings. [See Exhibit 1].

[3]. “ In determining the reasonableness of a plaintiff's fear of developing AIDS, courts have considered one or more of three factors: (1) the channel of transmission of the disease, (2) whether HIV was present when the transmission occurred, and (3) the results of HIV-antibody tests. A positive HIV-antibody test, of course, is sufficient prima facie proof that the plaintiff's fear of developing AIDS is reasonable. We are concerned here, however, with a case where the plaintiff has not tested seropositive. We conclude that, in order to maintain a cause of action for damages due to the fear of contracting AIDS, a plaintiff who has not tested seropositive must offer proof of ‘actual exposure’, that is, proof of both a scientifically accepted method of transmission of the virus (in this case a needle puncture) and that the source of the allegedly transmitted blood or fluid was in fact HIV positive (in this case the unfortunate infant). Requiring proof of actual exposure in this manner will, we believe, insure that there is a genuine basis for the plaintiff's fear of developing the disease, that the fear is not based on public misconceptions about the disease, and that such claims are treated consistently. Moreover, we emphasize that ‘[t]he existence of the channel for infection makes the threat of infection much more of a real possibility to be feared and far more than a speculative worry. Liability in the absence of a channel could provoke a flood of ill-justified litigation. Of course, it is the channel for infection, not actual HIV transmission or infection, which must be proven’ . . . (citation omitted).” The Brown court then went on to limit the period during which a fear would be reasonable to six (6) months after exposure, as a negative HIV-antibody test was found to be 95% accurate within that time frame.
[4]. In this regard, counsel for claimant refers in his post-trial memorandum of law to a website for the National Institute of Health, and to health services policies generated by DOCS. As was noted in the denial of the claimant’s summary judgment motion, witnesses were needed to link regulatory constraints to the facts alleged, even if to say that such policies were in effect at the applicable time. Moreover, such policies - including an indication as to what a “significant exposure” is in order to allow that inmates receive medical treatment - do not alone define the cause of action. [See Claimant’s Summation and Post Trial Memorandum of Law, Page 9]. While if in effect they might suggest ministerial failures because of a failure to follow policy, this is not the same as establishing the elements required for a legal cause of action for negligent infliction of emotional distress on an AIDS-phobia theory.
[5]. Plaintiff claimed that he ate blood-covered French fries at McDonalds. He did not test the substance on the French fries to determine if the source provided actual exposure, nor did he establish how the exposure would lead to infection. Defendant’s expert said “that it was most unlikely that HIV could have entered the plaintiff’s bloodstream through his oral mucosa. The plaintiff thereafter failed to submit any proof in admissible form (e.g., an opposing expert’s affidavit) explaining how the exposure he described could lead to infectio . . .”
[6]. “The factual situations giving rise to such claims must demonstrate ‘an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serve as a guarantee that the claim is not spurious.’ ” Harris v State of New York, supra, at 513, quoting Johnson v State of New York, 37NY2d 378, 382.