New York State Court of Claims

New York State Court of Claims
HARTLEY v. THE STATE OF NEW YORK, # 2010-010-060, Claim No. 111400

Synopsis

Inmate pain and suffering resulting in death due to medical staff neglect at Sing Sing.

Case information

UID: 2010-010-060
Claimant(s): KIMBERLY ALYSE HARTLEY, as Administratrix of the Estate of RODNEY WILLIAMS, and KIMBERLY ALYSE HARTLEY, Individually
Claimant short name: HARTLEY
Footnote (claimant name) : The parties stipulated to amend the claim to reflect the appointment of Kimberly Alyse Hartley as Administratrix following the death of Rudolph Williams, Jr., the former Administrator of the estate of Rodney Williams.
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) : The caption has also been amended to reflect the only proper party defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 111400
Motion number(s):
Cross-motion number(s):
Judge: Terry Jane Ruderman
Claimant's attorney: THE JACOB D. FUCHSBERG LAW FIRM, LLP
By: Alan Fuchsberg, Esq.
Elena Carter, Esq.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Jyotsna Gorti, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 22, 2010
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

At approximately 5:30 a.m. on October 9, 2003, Rodney Williams, an inmate, was escorted by two correction officers to the Sing Sing Correctional Facility (Sing Sing) emergency room. Williams was assessed and then transferred to the Sing Sing infirmary at 5:45 a.m. Williams was not seen by a doctor until 8:45 a.m., when Williams was noted to be cold and unresponsive (Ex. 1, p 4). At 9:15 a.m., Williams was pronounced dead (Ex. 2). An autopsy was performed and the cause of death was determined to be acute pulmonary edema of unknown etiology. The Autopsy Report noted that a high level of barium was found in Williams' blood and tissues (Ex. 2, p 8). Williams was 20 years old at the time of his death and was serving a sentence with a maximum release date of December 30, 2004 and a possibility of an earlier release on November 30, 2003, weeks from his date of death (Ex. 4, p 21).

The Administratrix of Decedent's estate (claimant) seeks damages for the pain and suffering Williams endured due to defendant's alleged negligence and medical malpractice.(3) Specifically, claimant contends that Williams complained that his coffee had been poisoned by another inmate and that defendant failed to timely and adequately address Williams' condition. Claimant further argued that this caused Williams to endure hours of pain and suffering and resulted in his death. In contrast, defendant maintains that it acted appropriately according to the symptoms presented by Williams and that, while Williams' death was unfortunate, there is a lack of evidence to support a finding of negligence or medical malpractice. Additionally, defendant contends that the proof of Williams' alleged pain and suffering is speculative. The Court's assessment of the witnesses' credibility is critical to the determination of the issues in this matter.

On October 9, 2003, Correction Officer Clifford Mayfield was assigned to the 11:00 p.m. to 7:00 a.m. shift on B block. Mayfield had been employed as a correction officer at Sing Sing for 13 years and testified that he had a distinct memory of that day because he had previously interacted with Williams and recalled him as a quiet guy who did not pose any problems. Mayfield was a forthright and credible witness.

At approximately 3:30 a.m., Mayfield was informed that Williams was vomiting. Mayfield proceeded to Williams' cell and awaited the arrival of the area supervisor to gain entry to the cell. During that time, Mayfield remained outside Williams' cell and observed Williams standing, holding onto the bars, and not feeling well. Williams expressed that he believed that his discomfort was due to his coffee being poisoned by another inmate. Mayfield described Williams as incoherent, in distress, and unable to stand without assistance. Mayfield observed blood in the toilet and vomit on the side of the toilet and on the floor (Ex. 6). While Mayfield did not recall asking Williams how long he had been vomiting, Mayfield estimated that Williams had been vomiting for 45 to 50 minutes.

Mayfield called the Sing Sing emergency room and spoke with Nurse Miller. Mayfield reported that Williams was in distress and vomiting blood. Nurse Miller advised that Williams be taken to sick call at 7:00 a.m. Not satisfied with this proposed course of action, Mayfield called his area supervisor and reported that "this kid needed to get out of the cell * * * we got to get him to that ER" (T:33).(4) He related that Williams has "a toilet full of blood," "his cell smells like feces," "he's throwing up, and he's incoherent" (id.). The area supervisor responded that he would dispatch an escort officer to take Williams to Sing Sing's emergency room and Mayfield was directed to place another call to Sing Sing's emergency room.

Mayfield made a second call to Nurse Miller and expressed that Williams was throwing up blood and in distress. Mayfield stated that Williams looked like he was dying and needed to go to the hospital (T:36). Mayfield returned to Williams to prepare him to go to Sing Sing's emergency room. Williams, who was on his knees vomiting, took several minutes to get dressed. Believing that Williams might be sent to an outside hospital, Mayfield made sure that Williams was wearing boots rather than slippers.

Mayfield testified that he carried Williams down two flights of stairs because he was unable to walk. During this time, Williams expressed that his coffee had been poisoned by another inmate. They reached ground level where they waited for the escort officer. Mayfield did not remember whether Williams was placed on a stretcher or in a wheelchair. Mayfield recalled that he told the officer to get Williams "to the ER ASAP * * * he was throwing up blood * * * and had stated that he was poisoned" (T:42).

Mayfield did not have the authority to call poison control or a doctor, or to transfer Williams to an outside hospital. Mayfield never thought that Williams was drunk and never had a conversation with anyone suggesting that drunkenness was the cause of Williams' condition.

After Williams died, an investigation ensued. Mayfield prepared a "To/From" memorandum recounting that at approximately 5:30 a.m., Williams was disoriented and confused and threw up at least three times before he was escorted out of the block (Ex. 5). The memorandum did not mention that Williams was vomiting blood and defecating. When asked about the absence of the preceding information in his memorandum, Mayfield replied that medical had already been notified of those particulars and that his memorandum was "just a simple statement as to what transpired * * * from Point A to Point B" (T:47).

Correction Officer Gregory Ebron has been employed by the New York State Department of Correctional Services (DOCS) as a correction officer for 24 years and he was assigned to Sing Sing from 1988 to 2004. On October 9, 2003, he was working the 11:00 p.m. to 7:00 a.m. shift and was called by his supervisor to escort Williams to Sing Sing's emergency room. According to Ebron, Williams was escorted to the steps by Correction Officer Mayfield and then Williams walked down the steps by himself. Correction Officer Ebron and Williams then walked to the emergency room (T:638). Ebron did not recall Correction Officer O'Brien accompanying him nor did Ebron recall Williams needing any assistance walking (T:638-39). Ebron testified that he did not have the impression that Williams was drunk and Williams did not smell of alcohol (T:646-47). Ebron also testified that he did not report to anyone that Williams was drunk (T:647).

Ebron stayed in the Sing Sing emergency room during Williams' examination. As Nurse Miller was taking Williams' vital signs, Ebron heard Williams say that he was not feeling well and that he had a cup of coffee. At his examination before trial, Ebron was asked what Williams told Nurse Miller and Ebron replied, "He repeated the coffee thing. I remember him saying that again. 'Somebody put something in my coffee' " (T:616). Ebron further testified at his examination before trial that he and Correction Officer O'Brien escorted Williams to the infirmary (T:617).

Correction Officer Russell M. O'Brien has been a correction officer for 26 years. On October 9, 2003, he was a roundsman on the 11:00 p.m. to 7:00 a.m. shift and was asked to escort Williams to Sing Sing's emergency room. O'Brien did not recall Correction Officer Ebron being present while escorting Williams (T:653). O'Brien testified that Williams was able to walk unassisted the approximate distance of a city block (id.).

According to O'Brien, Williams said he was not feeling well and nothing more specific. Williams did not say he was vomiting or had diarrhea. When questioned at trial whether Williams looked like he was in pain, O'Brien replied, "I don't know. It was dark" (T:655). Previously, when asked the same question at his examination before trial, O'Brien testified that "[h]e looked sick to me" (T:656).

In rebuttal, claimant offered the portion of Nurse Miller's deposition describing Williams when he arrived at the emergency room. Specifically, she testified that:

"they [O'Brien and Ebron] had him [Williams] under their arms like this, and they said, oh he was drunk. So I looked at him. I thought he was drunk. He looked - - slurry was speech, you know [sic]"

(T:658).

Portions of Leacy J. Miller's deposition were read into evidence.(5) Miller, a registered nurse, who has been employed by Sing Sing since 1993, testified that the escorting officers who brought Williams to Sing Sing's emergency room reported to Miller that Williams was drunk. Nurse Miller did not smell alcohol on Williams and did not ask him if he had been drinking or if he had a history of alcohol use, nor did the correction officers state that Williams had such history. She examined Williams and his vital signs were recorded along with the notation of nausea, diarrhea, and drowsiness (Ex. 1, p 16). Miller testified that she had no difficulty in obtaining Williams' vital signs.

Williams was awake and talking and not in any respiratory distress. Williams told Miller that he was nauseous, had been vomiting, and had diarrhea. Miller observed that Williams had urinated on himself. Miller testified that:

"[t]hings were moving too fast. He was in an unstable condition * * * I was trying to get vitals, call a doctor. You're one person, you know, you just start moving. You're not really - - I didn't ask questions, you know. I took the vitals, I saw that his condition - - I called the doctor, that was it"

(T:290).(6) After taking Williams' vitals, Miller still could not tell if Williams was drunk (id.). She testified that if she thought Williams was drunk she would have documented it and she did not.

Miller telephoned Physician's Assistant (PA) Po Kum Kwan for patient evaluation and noted:

"pt. [patient] admitted to [i]nfirmary for further evaluation by PA in AM. Pt is urinating on self. [U]nable to sit by self. Pt 'think' 'someone put something in my coffee' "

(Ex. 1, p 16). When asked if Kwan had made any requests for any testing to determine if Williams had ingested anything which could have caused his condition, Miller replied, "No. I wish" (T:290).

According to Kwan's instructions, Miller asked Williams what he had eaten. Williams replied, I think someone put something in my coffee. Miller relayed Williams' response to Kwan and Kwan did not reply. Kwan did not order any blood work for Williams and did not direct poison control to be called. Kwan said that she was getting ready to take a shower and would be "right in" and that Williams should be sent to the infirmary (T:299). Kwan did not state a specific time for her arrival, but Miller thought it would be immediate (id.).

A crossed out portion of Nurse Miller's notes read "per PA pt should go to s/c for evaluation" (Ex. 1, p 16). Miller's explanation for the crossed out section was that when she had related to Kwan that Williams was complaining of nausea and vomiting, "she apparently didn't understand the severity of his * * * complaints, so she [Kwan] thought maybe he could just * * * go to sick call. It just sounded like, you know, he was having a little nausea and vomiting, but I told her he was unstable when we continued talking. So she [Kwan] say [sic], well, I'm getting ready to * * * take a shower now, and I'll be right in, so put him in the infirmary" (T:292-93). According to Miller, after further conversation, Kwan realized that Williams was unstable and needed more than just sick call (T:296-97).

Nurse Miller testified that she believed Williams to be unstable because he was staggering when he walked and slurring his speech. Despite these signs, Miller did not perform a neurological assessment. Miller testified that she had the number for poison control and could call if she thought someone had been poisoned; however she did not place the call.

Williams was transferred from Sing Sing's emergency room to the infirmary in a wheelchair escorted by Nurse Miller and two correction officers. According to Miller, she gave Nurse Tensie Robinson an oral report as well as the written record (Ex. 1, p 16).

Po Kum Kwan, a licensed physician's assistant since 1997, has been working at Sing Sing since 2001. In 2003, Sing Sing had an emergency room and an infirmary in different locations. Kwan described Sing Sing's emergency room as the place for patients that must be seen right away, whereas the infirmary was often used for patients who have returned from a hospital and needed to be stabilized. On October 9, 2003, Kwan was on call for the emergency room and at 5:30 a.m., she received a telephone call at her home from Nurse Miller. According to Kwan, it was the nurse's responsibility to make an initial assessment of the patient. Then, based upon that assessment, the nurse had the option of waiting or calling a PA, a physician, or a telemed. Without speaking to either a PA or a doctor, the nurse could not transfer a patient to the infirmary or to an outside hospital. Additionally, sending a patient out of the facility required notifying the watch commander to complete the process. In Kwan's experience, it took from one-half hour to two hours for an ambulance to arrive. Kwan did not know the distance to the nearest hospital.(7)

During the telephone call to Kwan, Miller related Williams' vital signs as a temperature of 95.9 degrees; blood pressure of 110/90; and a pulse rate of 56 (Ex. 1, p 16). When questioned at trial if Kwan had made an assessment as to whether Williams was stable, Kwan testified that she made a verbal assessment. In contrast, at her examination before trial, Kwan testified that she did not make any assessment as to Williams' stability; rather she maintained that she relied upon Nurse Miller's assessment.(8) Kwan testified that Williams' vital signs indicated that he was borderline stable; his blood pressure was stable and his pulse was normal for a young man. Kwan did not direct Nurse Miller to repeat the vital signs or to order an ambulance.

Kwan knew that Williams had been vomiting. At trial, however, Kwan could not recall whether Miller had mentioned that Williams believed that someone had put something in his coffee; that Williams was urinating on himself; and that Williams was unable to sit. At her examination before trial, however, Kwan testified that she informed Dr. Halko that Williams was possibly having a bad reaction to coffee because Nurse Miller had told Kwan that Williams said his coffee was making him sick.

Kwan conceded that there is a difference between a patient being sick from drinking ordinary coffee and drinking coffee that has been tainted with something. Nonetheless, Kwan maintained that if she knew Williams was sick from a foreign substance added to his coffee, she would have considered the possibility that the substance was a laxative (T:96-97). Kwan testified that the possibility of Williams being poisoned "didn't cross my mind at that time" (T:97). Although she conceded that the distinction might lead her to make a different differential diagnosis, she did not ask for any clarifying information. Kwan further explained that the nighttime medical staff lacked the capacity to draw and analyze blood; therefore a patient would have to be transferred to an outside hospital for blood work. Kwan also testified that if a patient was having labored breathing and failing vital signs, oxygen and IV lines could be administered and an ambulance could be called. At trial, Kwan testified that she made a differential diagnosis of coffee onset gastroenteritis. At her examination before trial, she stated that she did not make any recommendations or orders to either rule out or rule in gastritis because she was planning to see the patient before making a diagnosis.

According to Kwan, she directed Nurse Miller to send Williams to the infirmary to be closely observed. Kwan further advised that she would be in and that if there was anything else needed, Dr. Halko should be called. Kwan did not arrive at the infirmary until 7:15 a.m., almost two hours after receiving Nurse Miller's telephone call (T:102).

When Kwan arrived at the infirmary, she spoke to Nurse Robinson who had admitted Williams to the infirmary during the night shift. Robinson told Kwan that Williams was resting and stable.

Robinson wrote in Williams' medical record that Williams arrived at the infirmary at 5:45 a.m. in a wheelchair, was lethargic and incontinent. She used a finger stick to test his sugar, which she determined to be 146. She further recorded, "ER nurse could hardly get his [vitals]" (Ex. 1, p 91).(9) Kwan testified that she did not read Robinson's progress notes because the charts were in a locked area.

Shortly after 7:00 a.m., Jeanette Barrett, the day shift nurse in the infirmary, was setting up her cart to distribute medications to the patients. One correction officer was in the infirmary and a second correction officer was getting the breakfast trays. Williams was in a 10-foot by 10-foot private, locked room, that had large glass windows facing the hallway and two small windows on an outside wall. Kwan was denied access to Williams' room because only one officer was in the infirmary at that time.

Sometime between 7:15 a.m. and 7:30 a.m., Kwan looked through the hallway window into Williams' room. Kwan testified that the room was dark with the lights off, but that the hallway lighting where the window faced was bright. When asked at her examination before trial how dark the room was, Kwan replied, "[n]ot pitch black, but you can't really see whether they had * * * sleep in the eyes, not clear that like, you know * * * the only thing I can see is breathing" (T:617-18). When questioned about her view into Williams' room, Kwan responded, "[y]ou can see, but not completely, you know, detail" (T:156). Nonetheless, Kwan maintained that she observed that Williams, who was facing her, was resting and not in distress. She had the impression that he was sleeping. She determined that there was no need to do anything further. After Williams' death, Kwan wrote in Williams' medical chart, "7:15 a.m. observed Pt through window - chest rises/breathing, couldn't get in room. No co available and MD followup alerted 7:45" (Ex. 1, p 91). Before Kwan left the infirmary, she told Nurse Barrett to call if she noticed anything that was not normal.

Portions of the deposition of Tensie Robinson were read into evidence. Robinson was the nurse on duty when Williams was admitted to the infirmary. Nurse Miller had telephoned from the emergency room to say that she was transferring a patient [Williams] with nausea and vomiting. Williams arrived in a wheelchair, which according to Robinson, is unusual because if an inmate needs a wheelchair, then he should not be in the infirmary, he should be sent to an outside hospital. According to Sing Sing policy, "[s]ending the inmate to the infirmary is saying the inmate is stable enough to be in the infirmary" (T:304). According to Robinson, the responsibility to either call an ambulance or to request a facility van to transport an inmate to a hospital lies with the emergency room nurse who must obtain approval from the PA or a doctor.

Robinson testified that when Nurse Miller brought Williams' chart to the infirmary, she just handed Robinson the chart and left without any further discussion.(10) Robinson observed that Williams' pants were wet, but she was not sure whether she had determined that he had urinated on himself.

As Williams sat in the wheelchair, his head was slightly bowed. Thinking he might be diabetic, Robinson left to get a glucometer to test his sugar. By the time she returned with the glucometer, Williams was in bed in a private room. Finding his sugar results good, Robinson read Williams' chart in order to make an assessment based upon what was written in the emergency room.

Robinson recalled reading the top half of Nurse Miller's note documenting Williams' vital signs, his complaints of nausea and diarrhea, that he is drowsy and that a physician's assistant was called and would check the patient later in the infirmary. Robinson, however, testified that she had no recollection of reading the rest of Williams' chart. Specifically, the notation that "patient is urinating on self. Unable to sit by self and thinks 'someone put something in my coffee' " (T:308-09). Robinson claimed that if she had read the section about something put in Williams' coffee, she would have assumed Williams had been poisoned and, according to Sing Sing policy, she would have called poison control. She also testified that she would have transferred Williams back to Sing Sing's emergency room and helped Nurse Miller secure an ambulance and send him out. She also stated, "[p]ersonally, what I would have done was just call the watch command and say we are sending this inmate out because you can do that depending on urgency" (T:327).

Robinson never physically examined Williams as is normally done when an inmate is transferred from Sing Sing's emergency room. She testified that usually a patient goes into a treatment room for a physical assessment. However, a physical assessment was not performed on Williams because it was the count time (5:45 a.m. to 6:15 a.m.). Therefore, the officers just rushed Williams into a locked private room. During the count, the correction officers lock down all movement of inmates in the entire facility. All of the blood pressure machines, thermometers and stethoscopes were in the treatment room. While Robinson did not record Williams' pulse rate, she maintains that she has an independent recollection that she took his pulse and it was about 60. She also maintains that from physically observing William's breathing, she determined that his respiration was 20. Robinson concluded that Williams was breathing normally because his chest was rising symmetrically. According to Robinson, Williams was conscious after he was placed in bed and was seen changing his position (T:322). Specifically, Robinson noted that Williams was lying on his back with his knees raised up toward his chest (T:489).

Robinson noted that Williams appeared to be drunk and had a history of alcohol use based upon a check mark indicated on a preprinted medical history form completed as part of his screening process in 2002 (T:318-19; Ex. 1, p 126). Robinson testified that she thought Williams was drunk because she could smell alcohol on his breath and he was cursing. She did not call for an ambulance because she thought Williams was just nauseous and vomiting from being drunk. She did not recall asking Williams what had happened and what he thought caused the nausea and vomiting. Other than being drunk or diabetic, Robinson did not consider anything else in her differential diagnosis. She did not order any blood work or any diagnostic tests because she believed that was the responsibility of the PA or doctor.

Nurse Barrett has been a licensed registered nurse since 1994 and has been employed at Sing Sing from 1999 to 2008. On October 9, 2003, Barrett arrived at Sing Sing around 7:00 a.m. for the day shift in the infirmary. She had a routine change of shift conversation with Nurse Robinson who had worked the night shift and reported that Williams was a known alcohol maker who was drunk and "sleeping it off" (T:212). Barrett understood that Williams was being held for observation. Barrett and Robinson did not specifically discuss Williams' vital signs. Barrett believed that the policy at Sing Sing required that vital signs be taken on admission to the infirmary. In this case, however, they were not. The only vital signs documented for Williams were taken in the emergency room. Nurse Robinson's assessment of Williams upon his admission to the infirmary was based on Nurse Miller's emergency room report.

Barrett further explained that usually a patient's vital signs are recorded on a graph sheet for a period of several days. This forms a basis of comparison providing information about the patient's condition. Barrett also noted that nursing in a correctional facility is different because patients may exaggerate their symptoms for a number of motives. Therefore, it is often necessary to rely upon more objective data. Barrett further explained that the purpose of a nurse's assessment is to gather information for the doctor who then gives the order for intervention.

Barrett testified that she was not told by Nurse Robinson that Williams said that someone had put something in his coffee. If Barrett had that information, she would have considered that he had been poisoned, gone into his room, and called a doctor. Barrett testified that Sing Sing's guidelines for suspected poisoning required contacting poison control and the doctor on call. In her view, telephoning a physician's assistant was not a substitute for speaking with a doctor.

Barrett further testified that if she had known that Williams had vomited blood, it would have also changed his treatment. She would have considered Williams acutely ill and not just sleeping. Based on her understanding, it was standard practice to document a patient's chart with a complaint like vomiting blood. Barrett added that if a patient presented to her in Sing Sing's emergency room with a history of vomiting blood, could not walk or sit, and said someone had put something in his coffee, Barrett would have telephoned the doctor and poison control. Barrett believed that, under those circumstances, the doctor would likely direct that an ambulance be called.

Barrett testified that in reaching a differential diagnosis regarding gastritis, she would ask a patient to describe his pain, what he had eaten, and the contents of his vomit and diarrhea. Urinating on oneself is not a sign of gastritis.

Barrett described the layout of the infirmary and noted that the hall lights remained on at all times. The facility does not have video monitors for its patients. Rather, the medical personnel and correction officers make rounds. There is no policy regarding the frequency of the rounds; it depends on the acuity of the patients. When asked if it is possible to do a physical assessment through a window, Barrett replied, only a very basic one to see if a patient is breathing or if he is eating, alert, and oriented.

Barrett testified that Kwan indicated that she was going to check Williams and asked Barrett if she wanted to join her. Barrett told Kwan to go ahead and to call if anything was needed. Kwan returned and reported that she could not gain access to Williams' room and that he appeared to be fine. The infirmary procedures required that medical personnel be accompanied by a correction officer to access a patient's room while a second correction officer remained on the unit. When only one correction officer is present, a patient's room is opened only in an emergency. Kwan also said that Dr. Halko would be at the infirmary around 8:00 a.m. Barrett estimated that Kwan was in the infirmary only five to ten minutes.

After Kwan left the infirmary, Barrett finished putting the medications on the cart and conducted clinical examinations for the other patients. She was the only nurse in the infirmary that morning. Barrett stated that the legal minimum was only one nurse, but that there are usually two nurses assigned to the unit. Barrett never checked Williams.

Geor Baez testified that he has been a correction officer at Sing Sing since 1994 and in 2003, he had been assigned to the infirmary for several months. He stated that his duties included making security rounds and looking through the windows to see if the patients are alive (T:341). These rounds were supposed to be performed every 30 minutes.

On October 9, 2003, Baez arrived in the infirmary at 7:00 a.m. He described the procedure for serving food to patients in the infirmary. An inmate worker accompanies one of the correction officers to get meals from the mess hall and then the inmate worker serves the food to the patients. If a patient is in a locked room, a correction officer unlocks the room and the inmate worker places the food on the table and the officer then relocks the room as they leave. At 8:15 a.m., Baez and an inmate worker entered Williams' room for a "few seconds" (T:343). They did not speak to Williams who was facing away from them and toward the outside window. Nonetheless, Baez concluded that Williams "appeared to be sleeping" (T:344). Baez noted that Williams had changed his position since Baez had observed Williams earlier.

Baez testified that, prior to delivery of the food tray, he had made two security rounds when he observed Williams through the hall window. The first round was at 7:00 a.m., when Baez noticed that Williams was facing away from the window with his feet hanging over the side of the bed (T:358). On the second round, Williams was lying on his stomach with his feet back on the bed (T:362).

Baez conceded that the security rounds were not recorded in the logbook and the"To/From" prepared by Baez after Williams' death noted only one security round at 7:00 a.m. prior to the food delivery (T:369-70; Exs.7, 9, 10). Nonetheless, Baez maintained that he did two security rounds before 8:15 a.m. at approximately 30 minute intervals (T:371). At no time did Baez observe Williams' face.

Baez testified that he told Kwan that she would have to wait a few minutes to gain entry into Williams' room until the second officer returned to the unit. Kwan did not convey to Baez Williams' status at that time.

Dr. Halko arrived at the infirmary between 8:30 a.m. and 9:00 a.m. and went directly to Williams' room, escorted by Baez. Williams was lying face down with his head at the corner of the bed and his face moved away from the bed (T:488). He was not breathing and there was white froth streaked with blood coming out of Williams' nose and mouth. It appeared to Nurse Barrett that Williams had moved his face away from the bed in an effort to keep his secretions off the bed and to breathe better (T:488). She ran for an oxygen tank and flipped Williams onto his back to begin chest compressions. The attempts to revive him failed.

Sharon Aboulafia Oken provided expert testimony on behalf of claimant. She has a Bachelor's of Science in Nursing from Buffalo University and a Master's in Nursing Administration from Hunter College. Oken, a licensed registered nurse since 1980, has taught clinical nursing at Long Island North Shore University Hospital and Pace University. She has had experience recognizing the signs of poisoning.

Oken opined that when Nurse Miller received the telephone call from Correction Officer Mayfield reporting that Williams was vomiting blood, had diarrhea and extreme abdominal pain, Miller should have considered that Williams presented an emergency situation that could have led to cardiac arrest and death. In Oken's opinion, it was Miller's obligation to inquire about the contents of Williams' vomit, when it began, and how often it had occurred. According to Oken, Williams was barely questioned. Additionally, once Miller learned that Williams thought someone had put something in his coffee and she observed central nervous system changes in Williams, Miller should have considered that Williams had been poisoned. Miller should have called 911 and a doctor. Oken opined that it was a departure from the standard of care for Miller to call only the PA.

In making her physical assessment, Miller should have gone through the bodily systems, respiratory, cardiac, genital-urinary, gastrointestinal, neurological and skin integrity, to ascertain if anything was outside the normal range. Oken testified that in such assessments, vital signs are always included and a history should be elicited from the patient.

Oken opined that it was a departure from the standard of care for Miller to omit from her notes that Williams was vomiting blood. Oken stated that this information was crucial. Oken further opined that, based on the complaints listed, that Williams was urinating on himself, unable to sit unassisted and thought that someone put something in his coffee, Miller should have called an ambulance. Oken further stated that once Miller had the information about vomiting blood and defecating, Miller had reason to call for an ambulance. Williams' complaints, combined with his inability to sit or stand, his slurred speech and his borderline vitals, also presented the need to call for an ambulance. Once Williams had urinated on himself, it was clear that something was very wrong. Williams' statement that someone had put something in his coffee, coupled with Mayfield's report to Nurse Miller, should have led her to call 911 and poison control. Oken dismissed the concept that inmates fabricate complaints, noting that it is the nurse's responsibility to make a physical assessment of the patient and that objective signs of vomiting blood, defecating, borderline vital signs and abnormal neurological assessments cannot be fabricated. In Oken's view, it was a departure from reasonable medical standards to simply call a PA rather than an ambulance.

Williams was transferred from Sing Sing's emergency room with an altered level of consciousness and incontinence; therefore it was a departure from the standard of care not to have taken Williams' vitals when he was admitted to the infirmary and every half hour thereafter. In addition, the oxygen level in his blood should also have been measured. Williams was admitted to the infirmary slumped over in a wheelchair and Nurse Robinson was aware that he had urinated on himself. Nurse Robinson should have called a doctor or sent Williams to an outside hospital. If Robinson believed that Williams was drunk, then she should have determined if he was suffering from alcohol poisoning.

Oken opined that if the medical staff had considered the possibility that Williams had been poisoned, they could have administered fluids and oxygen to prevent cardiac or respiratory collapse even while waiting for an ambulance to arrive. The fact that this was not done, Oken concluded, was another deviation from good and accepted medical standards.

Dr. Kelly Johnson-Arbor also offered expert testimony on behalf of claimant. Johnson-Arbor is board certified in emergency medicine, medical toxicology, and undersea and hyperbaric medicine. She received a B.A. from Harvard University and a M.D. from Loyola University Stritch School of Medicine.

Johnson-Arbor testified that Williams died from pulmonary edema caused by barium intoxication. She described the course of barium poisoning as beginning with gastritis, nausea, vomiting and abdominal pain. Then, as barium enters the cells, it causes low levels of potassium in the blood which leads to muscle weakness, cardiac weakness and, ultimately, pulmonary edema (fluid in the lungs). Johnson-Arbor testified that barium can be found in a product called Magic Shave which removes hair without the necessity of a razor and is found in prisons (T:456). The product comes in the form of a white powder which is soluble in coffee (id.). While barium is a rare form of poisoning, it can be treated. Even if the medical providers did not know the exact toxic substance Williams had ingested, they could have raised his low potassium levels and addressed the cardiac arrhythmia. Blood work was necessary to establish the exact levels of potassium. Had Williams received medical care in the morning hours of October 9, 2003, he would have had a significant chance of survival.

Even assuming that Nurse Miller had only the information contained in her notes, i.e.: Williams' complaints of nausea and diarrhea; his vital signs; that he urinated on himself and thinks someone put something in his coffee, Miller should have presumed that Williams was intoxicated or poisoned until it was proven otherwise. Poison control should have been called, blood work should have been performed and IV fluids should have been administered. The IV is necessary because he had been vomiting blood and might be dehydrated. If the infirmary did not have the capability of doing blood work until the morning, then Williams should have been transferred to a hospital for blood work. In the interim, even if there was a wait for the ambulance, Williams could have been given fluids to avoid low potassium levels and prevent cardiac arrhythmia. It was also noted that if Williams had been given an EKG, the abnormal changes would have been apparent. An EKG reveals certain heart rhythms which indicate low potassium levels. A neurological event also should have been considered. All of these possibilities presented an emergency situation that needed immediate treatment by the PA or a doctor.

While Johnson-Arbor did not consider it a departure from acceptable medical care that Miller called the PA rather than the doctor, once called, the PA should have seen the patient right away. In practice, Johnson-Arbor said someone on call is expected to respond to the patient within an hour. Kwan did not. Johnson-Arbor testified that, if the PA could not timely respond, then someone else should have been called (T:462). In Johnson-Arbor's view, Williams decompensated during the time between the telephone call to the PA and her arrival at the infirmary. Reviewing Miller's notes, Johnson-Arbor concluded that, while Williams' vitals were stable, his overall condition was not stable.

Johnson-Arbor also testified that it was not good and acceptable practice for Kwan to make a diagnosis over the telephone without examining the patient and talking to him. Under the circumstances, where Williams was incontinent, could not sit, and there was a possibility of poisoning, it was a departure from the standard of care not to repeat Williams' vitals every hour. It was also a deviation from accepted medical practice not to take his respiration rate and oxygen level. Changes in all of these levels are relevant, especially when poisoning is involved.

Johnson-Arbor testified that by 6:30 a.m., Williams' vitals should have been taken again and he should have been examined by a PA or doctor. Johnson-Arbor opined that the failure to do so was a substantial factor in causing Williams' death. She further stated that if an ambulance had been called at 6:30 a.m., and Williams had arrived at the hospital by 7:30 a.m., there was sufficient time to have stabilized his condition.

Johnson-Arbor disagreed with Nurse Robinson's assessment of alcohol intoxication based on Williams' admission record to Sing Sing in 2002 which merely indicated a check mark for alcohol use (Ex.1, p 125). Johnson-Arbor further explained that alcohol abusers build up a tolerance that would require a lot of alcohol to produce incontinence. Johnson-Arbor was not persuaded by the concept that inmates fabricate complaints and provide an unreliable history. In her view, part of good medicine requires a determination as to who needs emergency care and Williams presented an emergency situation. In this case, urinary incontinence makes the initial nausea and diarrhea more suspicious. Patients with gastroenteritis do not urinate on themselves and that was not a reasonable differential diagnosis.

Johnson-Arbor concluded that Williams was in pain and was suffering based in part upon the statements of Nurse Barrett and Nurse Robinson. Barrett testified that Williams had vomited blood froth and was found lying face down with his head away from the bed. To Johnson-Arbor, this evidenced purposeful movement that Williams was trying to move his head, perhaps in an effort to breathe more easily. Johnson-Arbor explained that a patient with pulmonary edema has trouble breathing and experiences a sensation similar to drowning. A patient with cardiac arrhythmia might feel a lump in the throat, which is uncomfortable, but not necessarily painful. The two combined, however, could produce a feeling of suffocation. Even supportive treatment, like an IV and oxygen, would have made Williams more comfortable by relieving his breathing and nausea. Additionally, the testimony of Nurse Robinson indicated that Williams was lying on his back with his knees up when she raised the side rails on Williams' bed (T:489). Although Robinson testified that Williams did not appear to be in pain, Johnson-Arbor testified that typically a patient flexes his knees because it relieves abdominal pain. He was described as lethargic and not moving. According to Johnson-Arbor, Robinson should not have made any assumptions about pain. In Johnson-Arbor's view, Williams had endured pain and suffering and the appearance that Williams was sleeping was consistent with barium poisoning which leads to general paralysis and weakness. Johnson-Arbor further explained that, even if a person is unable to move, he may still be conscious and suffering.

When Williams was pronounced dead at 9:15 a.m., his temperature was 94.7 degrees, not greatly changed from his 95.9 degrees temperature at 5:30 a.m. Based upon those numbers, Johnson-Arbor concluded that Williams was more likely to have recently expired when he was found at 8:45 a.m. The temperature in the room was 71 degrees and if he had been dead a long time, he probably would have been colder.

Analysis

It is well settled that the State has a duty to provide adequate and appropriate medical care to its inmates (see Mullally v State of New York, 289 AD2d 308). To prove that the State failed in its duty, it must be established, by a preponderance of the credible evidence, that the State departed from the accepted standard of medical care and that such departure was a substantial factor, or a proximate cause of the inmate's claimed injury (see Kaminsky v State of New York, 265 AD2d 306; Kagan v State of New York, 221 AD2d 7).

In applying the foregoing principles, and upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence and unrefuted expert testimony established that, due to defendant's negligence and medical malpractice, Williams was caused to endure significant pain and suffering while awaiting appropriate treatment which would have alleviated his suffering and prevented his death. Critical to this Court's findings was its assessment that the testimony of a number of material witnesses presented by defendant were in large part not worthy of belief, calculated in their testimony, contrary to each other and unreliable in their ability to recall significant facts. Accordingly, upon careful consideration, the Court makes the following findings of fact.

The credible evidence established that Williams conveyed to Correction Officer Mayfield, Correction Officer Ebron and Sing Sing's emergency room Nurse Miller that he believed his physical ailments were due to his coffee being poisoned. Correction Officer Mayfield carried Williams down two flights of stairs because Williams was in such poor condition that he was unable to walk by himself. Williams was then escorted to Sing Sing's emergency room by Correction Officers Ebron and O'Brien who were observed by Nurse Miller to be supporting Williams' weight by holding him up under each of his arms. The Court did not credit the testimony of these two veteran correction officers who testified that they did not recall the presence of the other officer in escorting Williams to the emergency room and that Williams was able to walk unassisted.

According to Nurse Miller, the escorting officers reported that Williams was drunk. Miller, however, did not smell alcohol on Williams and did not document that he was drunk. Miller later accompanied Williams to the infirmary with the escorting officers and gave Nurse Robinson an oral report on Williams, as well as his written record. To the contrary, Nurse Robinson testified that Miller just handed Robinson Williams' chart and left without any further discussion. Robinson testified that she did not recall reading all of Miller's notes reporting Williams' condition that morning. Incredibly, she claimed to have no memory of reading that "patient is urinating on self. Unable to sit by self and thinks 'someone put something in my coffee' " (T:308-09). Yet, Robinson purportedly recalled seeing a checkmark next to alcohol use on a preprinted medical history form that was completed in 2002 as part of Williams' screening process. This notation merely indicated alcohol use and was not a basis for assuming that Williams was intoxicated. Robinson further stated that she thought Williams was drunk because she smelled alcohol on his breath and he was cursing. Ebron denied reporting to anyone that Williams was drunk and denied having the impression that Williams was drunk or that he smelled of alcohol.

The sum and substance of the preceding testimony, as evaluated by the Court, was given no weight toward establishing that it would have been reasonable for any medical personnel to determine that Williams was merely intoxicated and needed to sleep off the effects of the alcohol. Further, according to the expert testimony, even if Williams was suspected to be intoxicated, the severity of his symptoms necessitated that he be assessed for alcohol poisoning. Notably, Nurse Robinson did not perform a physical examination of Williams upon his admission to the infirmary and merely relied on the emergency room assessment.

In contrast to the apparently calculated testimony of the two escorting officers, the Court finds that Williams presented to Nurse Miller with symptoms indicating that he was unstable and needed to be evaluated by a PA or a doctor. According to Miller, it was apparent to her that PA Kwan did not initially appreciate the severity of Williams' condition and his complaints. Therefore, Miller had to further communicate that Williams was unstable, staggering and slurring his speech and needed more immediate evaluation and treatment than to be sent to sick call hours later. While claimant's experts disagreed as to whether it was a departure from the appropriate standard of care for Miller to call only PA Kwan and not a doctor or 911, the Court finds that the unrefuted expert testimony established that Williams needed more immediate attention than he received and that he decompensated during the time between the telephone call to PA Kwan and her arrival at the infirmary, almost two hours later. The expert testimony established that if Williams had been appropriately examined within an hour of the telephone call to Kwan, an IV and oxygen could have been administered to make Williams more comfortable while awaiting the arrival of an ambulance. Once it was apparent that PA Kwan could not timely respond, another medical professional should have been called or Williams should have been sent to an outside hospital. The expert testimony further established that if Williams had been transferred to the hospital by 7:30 a.m., his condition could have been stabilized. The unrefuted expert testimony provided a convincingly descriptive account of the course of debilitation and suffocation that one would experience as a result of barium poisoning and pulmonary edema.

It is noted that the testimony of PA Kwan did not evoke the feeling that she gave careful consideration to the manifest condition of Williams as communicated to her by Sing Sing's emergency room nurse or that Kwan used any reasoned judgment in her assessment of Williams in her direction that he be transferred to the infirmary awaiting her arrival. She did not offer any explanation for her untimeliness nor did she convey that she was frustrated in her efforts to make a more expeditious arrival to the infirmary and an examination of Williams. Rather, the cavalier manner in which she testified evinced a feeling of disregard for salient facts communicated to her. Further, her claim to have conducted a sufficient examination of Williams, through a window into a nearly pitch-black dark room, to enable her to establish that he was resting, not in distress, and needed no further assistance, was incredible. This testimony from a trained medical professional, similar to the testimony of Nurse Robinson who purportedly did not recall whether she read the relevant portions of Williams' medical record detailing his symptoms on that date, conveys a misguided choice by these professionals of their chosen field of employment.

The Court rejects defendant's argument that the evidence is speculative as to whether Williams endured pain and suffering. This argument is specious particularly since the absence of details regarding Williams' condition in the hours before his death is attributable to defendant's failure to appropriately assess and monitor him. Defendant's departures are detailed from the time of the telephone call to PA Kwan until Williams was finally examined by Dr. Halko approximately three hours later. Notably, Kwan failed to order any blood work or direct that Williams be sent to an outside hospital where appropriate testing could be done. Upon Williams' transfer to the infirmary, Nurse Robinson did not perform the customary physical examination and merely relied upon Nurse Miller's notes, which Robinson failed to read fully. Robinson did not make appropriate inquiries of Williams as her patient nor did she monitor him after he was placed in a darkened private room. Rather, she treated Williams simply as an intoxicated individual and reported to PA Kwan that Williams was resting and stable. Additionally, Kwan, who arrived at the infirmary almost two hours after she received the call about Williams, claimed to have assessed Williams' condition through a window into a nearly pitch-dark room. Kwan did not order that Williams' room be unlocked immediately due to a possibly emergent medical situation. Nor did Kwan wait for the second officer to return to the unit when the room could have been unlocked according to non-emergent procedures. In her haste, Kwan left the infirmary without a proper physical examination of Williams. Thus, defendant cannot claim that the evidence is speculative when it is the party who neglected its duty to properly assess, monitor and record the vital information about its patient. Despite defendant's failures, the Court finds that there was sufficient evidence presented to establish that Williams endured significant pain and suffering.

The testimony of Correction Officer Mayfield was forthright and credible in detailing the apparent signs of pain and distress that Williams was experiencing. The Court credited Mayfield's testimony that he reported that Williams was vomiting blood and smelled of feces even though it was not documented in Mayfield's To/From memorandum. Mayfield was not a member of the trained medical staff employed at Sing Sing. Nonetheless, as a layperson, he was able to assess that the symptoms exhibited by Williams before he was escorted to Sing Sing's emergency room for evaluation might necessitate a transfer to an outside hospital. Therefore Mayfield ensured that Williams was wearing his boots rather than his slippers. Contrary to the vague and conclusory testimony of Correction Officers Ebron and O'Brien that Williams walked unassisted, the Court finds the testimony of Correction Officer Mayfield to be more believable in the details of Mayfield carrying Williams down two flights of stairs because he was in so much pain that Williams was unable to walk by himself. Additionally, there was evidence that during the hours prior to his death, Williams was observed to have changed his position in a purposeful manner in an effort to make himself more comfortable. Particularly, it was noted that Williams had flexed his knees likely to relieve abdominal pain and he was found lying on his stomach with his face moved away from the bed in an apparent attempt to breathe more easily.

Thus, the Court finds that claimant presented sufficient evidence to demonstrate that, but for defendant's delay in diagnosis and treatment and the numerous departures from the appropriate standards of medical care as articulated by claimant's experts, Williams was caused to endure prolonged pain and suffering leading up to the time of his death and his condition could have been stabilized. Accordingly, the Court finds that an award of $725,000 is appropriate to compensate for the pain and suffering Williams endured prior to his death.

It is further ordered that, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act 11-a(2).

LET JUDGMENT BE ENTERED ACCORDINGLY.

December 22, 2010

White Plains, New York

Terry Jane Ruderman

Judge of the Court of Claims


3. Claimant has withdrawn the cause of action for wrongful death.

4. All references to the trial transcript are preceded by the letter "T."

5. Miller had a family emergency that prevented her appearance at trial.

6. While she testified to "doctor," it is undisputed that Miller called the PA and not the doctor.

7. Claimant asked the Court to take judicial notice of the distance from Sing Sing to the following hospitals: Phelps Memorial Hospital, 4.4 miles; Westchester Medical Center, 8.5 miles; Mt. Vernon Hospital, 22.29 miles. Defendant did not object to the distances.

8. Nurse Miller testified that she told Kwan that Williams was unstable.

9. Miller, the emergency room nurse, testified that she had no difficulty in obtaining Williams' vital signs.

10. Miller testified that she accompanied Williams to the infirmary and gave Robinson an oral report as well as the written report.