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
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
GARY E. DIVIS, ESQ.
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: VINCENT M. CASCIO, ASSISTANT ATTORNEY GENERAL
July 2, 2009
See also (multicaptioned
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intentional infliction of emotional distress has been withdrawn.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
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
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.
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
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
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
“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
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
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
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
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.
DISCUSSION AND CONCLUSION
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
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).
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
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
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
, and more specifically referenced in Ornstein v New
York City Health & Hosps. Corp
, and elsewhere,
[see Montalbano v Tri-Mac Enters. of Port Jefferson,
236 AD2d 374
(2d Dept 1997)],
if only to avoid the warning
of Brown v New York City Health & Hosps. Corp
, 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
, 187 Misc 2d 512 (Ct Cl 2001)],
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
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
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
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. All quotations are to trial notes or audio
recordings unless otherwise indicated.
.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
. “ 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
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.
. 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.
. 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 . . .”
. “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
, at 513, quoting Johnson v State of New York
37NY2d 378, 382.