While Claimant failed to demonstrate that his preexisting injury was exacerbated by negligent pat frisk, Defendant's negligence did cause Claimant undue pain and suffering at the time. Claimant awarded $1000.00.
|Claimant short name:||MURRAY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||FRANZBLAU DRATCH, P.C.
BY: BRIAN M. DRATCH, ESQ.
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: TAMARA B. CHRISTIE, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 28, 2018|
|See also (multicaptioned case)|
Claimant Allen Murray, an inmate confined at Attica Correctional Facility (Attica) at all relevant times, filed claim number 122684 on May 2, 2013, alleging that he sustained injuries when Defendant negligently directed him to raise his surgically repaired left arm during a pat-frisk. I conducted the trial of this matter on March 1, 2018 and April 25, 2018.
At the time of trial Claimant, Allen Murray was 48 years old and residing at Auburn Correctional Facility. Claimant testified that he was placed in the custody of the Department of Corrections and Community Supervision (DOCCS) in early 2012 at Attica and was housed in A-Block. On August 15, 2012, at approximately 7:00 p.m., Claimant decided to leave his cell and attend evening recreation. He had just returned to the facility after being in the hospital. When he arrived at the outer door to the recreation yard, Officer Yackeren pulled Claimant out of line to conduct a pat-frisk on him. Claimant removed the contents of his pockets, which included his medical limitation permit and identification. The medical limitation permit stated Claimant was unable to lift his left arm and was authorized to wear a sling and a hand brace. The permit was effective from August 2, 2012 (after Claimant's most recent surgery performed by Dr. Lesly Germain) and it expired on September 2, 2012 (Exhibit 4). Claimant testified that he only raised his right hand and touched the wall, but the officer tapped his left arm and told him to raise it, too. Claimant followed the order. Once Claimant was in the standard position for a pat-frisk, his left arm began to hurt just below the elbow.
At Claimant's deposition before trial, Claimant testified that the officer looked at his medical limitation permit before ordering Claimant to lift his left arm, put it on the wall and step back and lean forward, which put pressure on his arm.
Upon completion of the pat-frisk, Claimant requested emergency sick call, which the officer denied. Claimant proceeded to the yard and stood near the door to go back into the facility at the earliest possible time; an hour to an hour and a half after being admitted to the yard. He went back to his cell and was again denied emergency sick call.
Claimant did eventually see Dr. Lesly Germain after the pat-frisk incident and Dr. Germain performed emergency surgery at that time because Claimant's bones had "come apart." Throughout the remainder of 2012 and 2013, Claimant had even more surgeries, switched doctors and facilities, and finally had his left arm amputated above the elbow in 2016.
Claimant stated that he has been in constant pain since the August 2015 incident, including after the amputation, as he experiences something called "phantom pain" where the limb used to be. He has tried multiple pain medications, has had his arm in a sling and it is only recently that he has been able to attend program. Auburn has placed him in the floor coverings program where he watches other inmates perform the work that requires two hands. In addition, he believes he is a target when he goes to recreation because he cannot defend himself. Officers allow him to shower on the company because it's too dangerous for him to use the group showers in the yard with the other inmates.
Inmate Jearmy Kennedy, an inmate porter on A-Block in Attica at the time of the incident, testified on Claimant's behalf. He knew Claimant because they were housed near each other and attended religious services together. He was aware of the problems Claimant had with his left arm and knew he had a medical limitation permit. On the day of the incident, inmate Kennedy was mopping the area where Claimant was being pat-frisked. Inmate Kennedy observed Claimant being "put on the wall" by Officer Yackeren, who then directed Claimant to put up his left arm despite being told Claimant couldn't and that Claimant had a permit demonstrating this limitation.
Inmate Robert Cardew also testified for Claimant. He stated that he also housed at Attica A-Block, two cells down from Claimant during this time. He always saw Claimant with a sling on his arm and understood Claimant was injured. On August 15, 2012, inmate Cardew was going to recreation with Claimant. He testified that they were standing in line in the lobby with about 40 other inmates waiting to get into the yard when he and Claimant were selected to be frisked by Officer Yackeren. Inmate Cardew and Claimant stood next to each other on the wall at the same time. The officer frisked inmate Cardew first, then while Cardew was still on the wall, the officer searched Claimant.
Inmate Cardew testified that Claimant had his arm in a sling, but raised his other arm to the wall. He observed the officer direct Claimant to remove the sling and put that arm on the wall as well. There was discussion between the officer and Claimant. Claimant eventually complied and was encouraged to hold his injured arm higher before he was searched. The process with Claimant lasted a couple of minutes.
Dr. Lesly Germain, a currently retired orthopedic surgeon, testified. Dr. Germain treated Claimant while Claimant was incarcerated at Attica. Dr. Germain was employed by DOCCS with privileges at the Wyoming County Community Hospital (WCCH) at the time. Claimant began treating with Dr. Germain in 2012. According to Dr. Germain, Claimant had undergone significant medical treatment of his left arm and elbow prior to Dr. Germain's care. It began with an accident in 2005 that caused a fracture and eventually two unsuccessful elbow replacements that had to be removed, multiple infections in the elbow and forearm, and problems healing the forearm fracture.
Dr. Germain first consulted with Claimant on March 20, 2012 in the Emergency Room at WCCH. Claimant presented with pain in his forearm, likely from infection and a fracture. Dr. Germain received permission from DOCCS to operate and on March 23, 2012, Dr. Germain installed an external fixator and did a bone graft to encourage the bones to create a union and heal. Dr. Germain noted that in November 2011, Claimant had been handcuffed behind his back and the "torsion produced a fracture of the forearm that was not treated until today [March 23, 2012]" (Exhibit 3, Operative Report).
On May 1, 2012, Dr. Germain noted that the x-ray of the left forearm showed a union of the ulna and fusion of the elbow, therefore the external fixator Claimant had been wearing since March, could be removed in two weeks (Exhibit 3, Progress Note).
Dr. Germain operated on Claimant's left forearm on June 6, 2012 and removed the external fixator, noting no motion of the bones at the fracture site, that union had been achieved, and the infection was healing (Exhibit 3). Dr. Germain testified that, while one can describe an infection of the bone as "healing," it really meant that the infection was controlled or not active. The infection never leaves the body, but can lie dormant when treatment is successful.
Dr. Germain's Progress Note of July 9, 2012 stated, "The x-rays today show possible healing of the fracture of the ulna and the fusion of the elbow." Dr. Germain testified the forearm infection was healed, but the CT Scan showed "possible incomplete healing." He ordered Claimant to wear an arm sling until Claimant could be reevaluated in two weeks. Dr. Germain also advised Claimant not to use his left forearm until then (Exhibit 3).
On August 1, 2012, Claimant presented with severe pain in his left wrist and some pain in his forearm. The medical notes indicated Claimant had been forced to move his shoulder during a search which increased the pain as his arm was manipulated during that search. This search, however, does not appear to be the pat-frisk of Claimant at issue in this claim. At trial, Dr. Germain never explained why he included this language about a search in this note. I am assuming it was a different search, which explains the new pain, but in Dr. Germain's estimation, it did not result in a re-fracture of the forearm. Dr. Germain noted there was "no motion in the previous fracture" and pronounced the fracture healed. Claimant was to wear the sling and a wrist brace until his next scheduled surgery (Exhibit 3-B).
The Operative Report dated August 21, 2012 (Exhibit 3-C) states Claimant presented for his follow-up surgery at WCCH, at which Dr. Germain was to surgically address the problems with Claimant's left wrist and scar tissue, but Dr. Germain discovered that the previously healed fracture was experiencing motion. The fluoroscopy revealed that the bones were no longer united - they had been fractured again. So, Dr. Germain added another step to the planned surgery and inserted a rod, internally, to attempt to immobilize the forearm fracture and get the bones to heal.
Claimant continued to treat with Dr. Germain until July 2013 when their relationship as doctor and patient ended. During that time, the internal rod failed and was surgically removed on November 2, 2012 and another form of fixation installed. As of January 2013, the bones were still not united and the infection had returned as well. By July 2013, the fracture and infection remained.
Dr. Germain testified to a reasonable degree of medical certainty that the previously healed fractured forearm was re-fractured when the officer forced Claimant to raise his left arm to conduct a pat-frisk. Further, the re-fracture and the cascade of failed treatment that followed caused the amputation of Claimant's arm above the elbow.
Defendant called Dr. Brian Harley, an orthopedic surgeon with Upstate Orthopedics in Syracuse, New York, who began treating Claimant in 2016. He described Claimant's medical history, based upon his review of Claimant's medical records, beginning in 2005. He stated that Claimant treated with Dr. Walter Short of Syracuse Orthopedic Specialists, PC (Exhibit A-1, pp. 2628-2875) for arthritis of the elbow and, after less invasive treatments failed, underwent a total elbow replacement. Infection set in shortly after that surgery, followed by multiple surgeries to clean the infected area, and remove and re-install the artificial elbow again. When those efforts failed, Dr. Short removed all the hardware and completed an elbow fusion. Dr. Harley concluded, based upon this history, that Claimant developed "chronic osteomyelitis," an infection deep inside the bone that is impossible to eradicate. Dr. Harley also reviewed Dr. Germain's charts.
Claimant presented to Dr. Germain with a fracture of the ulna approximately an inch and a half below the fused elbow joint. Dr. Harley testified that the elbow fusion was healed at this point, but Dr. Germain, to be safe, extended the external fixator meant to unite the ulna fracture to the elbow. The CT scans Dr. Germain ordered on July 9, 2012 confirmed the elbow fusion had been successful because you could see bone from the ulna flowing upward to the humerus. (Exhibit A-3). However, images of the fracture below the elbow show a gap in the ulna below the fusion, meaning no bone grew over the fracture to unite the pieces of the ulna. Dr. Harley referred to this as a "persistent nonunion." It had never healed. Dr. Germain's note on July 9, 2012 acknowledges possible incomplete healing (Exhibit B). Therefore, Dr. Harley opined, the pat-frisk conducted on August 15, 2012, could not have resulted in a re-fracture of the ulna because it was already broken.
After Dr. Germain's treatment concluded, Claimant was seen by the orthopedic doctors at Erie County Medical Center in Buffalo, New York. The records indicate that Claimant continued to suffer from a persistent nonunion of the ulna and his infection returned. They tried long-term antibiotics and splinting to avoid more surgery.
Dr. Harley stated that by the time Claimant began treating with him, Claimant's chronic infection had reactivated and was draining, he experienced chronic pain, could barely use his hand or fingers and could do nothing with his arm except hold it still in his splint. Dr. Harley had concurred with ECMC that Claimant's left arm was too far gone and that amputation above the elbow, in the healthy bone and tissue, was necessary to permanently eradicate the bone infection. This would also increase Claimant's chances of acquiring a hinged elbow prosthesis.
Dr. Harley opined within a reasonable degree of medical certainty that the arm movement caused by the August 15, 2012 pat-frisk did not cause Claimant's ulna to fracture, re-fracture or hurt his elbow fusion. Further, that there was no causal connection between the pat-frisk and the amputation because, in Dr. Harley's opinion, Claimant was already well underway to this outcome given his medical history.
At the conclusion of Dr. Harley's testimony, I asked what would happen if someone attempted to straighten out an arm with a fused elbow. He used Claimant's CT Scan to explain. The elbow fusion is shown by a solid mass of bone. Just below that solid mass, is the portion of the ulna where you can see holes in the bone from the screws that were applied to hold the elbow together to achieve the fusion. The fact that this part of the bone had holes in it made it structurally weaker, therefore this would be the spot that would break under pressure.
Defendant also called Correction Officer Craig Yackeren as a witness. Officer Yackeren testified that he has been employed by DOCCS for 32 years. He was assigned to Attica A-Block in August 2012, however, he was not working the third shift (3:00 p.m. to 11:00 p.m.) on August 15, 2012. He worked the second shift (7:00 a.m. to 3:00 p.m.) that day. Officer Yackeren testified that he did not conduct Claimant's pat-frisk. However, if he had conducted the pat-frisk, Claimant's arm would have remained in the sling and he would have patted along the outside of the sling while the other arm was on the wall to make sure there was no contraband.
Sergeant Marc Musialowski, a 25 year DOCCS employee, held the position of Correction Sergeant at Attica for six years, including 2012, when he was Chart Sergeant. As Chart Sergeant, he was responsible for the accountability of everyone who worked at Attica. The information for each employee, the dates they worked and the shifts and positions assigned are kept on what is called a chart or staff planning grid. Exhibit C is the chart for August 15, 2012. According to the chart, Officer Yackeren was working the 7:00 a.m. to 3:00 p.m. shift that day. Had Officer Yackeren worked a double shift that day, his name would have been included in that part of the chart. This chart would have been printed and available to the Chart Sergeant on August 14, 2012, so he could make sure there was sufficient coverage and so changes could be noted.
Claimant and Inmates Kennedy and Cardew insist Officer Yackeren was the guard that pat-frisked Claimant on August 15, 2012. Officer Yackeren and Sgt. Musialowski testified Officer Yackeren worked the day shift on August 15, 2012, thus was not at Attica for the 7:00 p.m. recreation run. Although Officer Yackeren admitted he frequently would work a double-shift, the Attica Staff Planning Grid for August 15, 2012 clearly shows he worked only the day shift (Exhibit C). Claimant could have the wrong date or there could be a mistake on the chart, however, no one appears to dispute the fact that Claimant was pat-frisked prior to entering the yard on or about August 15, 2012.
Claimant carried his medical limitations permit and wore his sling. I credit Claimant's testimony as well as the corroborating testimony of Inmates Kennedy and Cardew that Claimant was pat-frisked and ordered to raise his left arm and place it on the wall.
It was clear from the CT Scans of July 9, 2012 (Exhibit A-3) that Claimant's forearm fracture had not healed. The pat-frisk occurred over a month later and I credit Dr. Harley's opinion that it was unlikely that Claimant's fracture would have healed by August 15, 2012, given Claimant's prior complicated and extensive medical history. Nonetheless, the fact that Claimant was forced to raise his arm and lean against the wall in contravention of the doctor's orders and the medical limitations permit, was a negligent act that caused pain and suffering.
Upon the record before me in this matter, I find that Claimant was credible and that much of his testimony was uncontradicted. Although there is no evidence that Claimant's pre-existing left arm injury was exacerbated or that his eventual recovery was any less successful as a result of this pat-frisk, the negligently performed frisk did force Claimant to endure pain and suffering he would not otherwise have had to endure.
I hereby award Claimant the sum of $1,000.00 for his injuries. To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
Any and all motions on which the Court may have previously reserved decision, or which were not previously determined, are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
November 28, 2018
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims