This was originally posted on the DGR Blog.
Was New York State Liable for Medical Malpractice/Negligence?
A convict complained about lower back pain radiating into his legs and asked to be moved to a cell on the medical treatment floor to by-pass the stairs. The request was denied and the prisoner was subsequently injured when he fell on the stairs.
The convict sued. Was the State liable?
On or about January 14, 2016, James Marsh was on his way to sick call at approximately 5:30-6:00 a.m. at the Sing Sing Correctional Facility from A Block, K company, 50 cell. As he descended the stairs, upon turning onto J Company, while holding onto the railing, he fell down the stairs when his right leg gave out due to prior severe lower back pain radiating into his legs.
For several months prior to January 14, 2016, Marsh had severe and chronic lower back pain radiating down his right leg—causing the leg to give out on occasion. Marsh complained to medical staff within Sing Sing on numerous occasions; was being treated for that condition at Sing Sing; and requested that he either be moved to the same floor level as his medical appointments or be given assistance in ambulating down the stairs such as a cane, a walker, or a person to assist him while descending the stairs. Those requests were ignored and/or denied. Marsh was forced to remain in a cell on an upper level and required to use multiple flights of stairs on a daily basis without the assistance of a walking device, despite his prior complaints and requests.
Marsh alleged that, as a result of the fall, he “sustained injuries and exacerbated pre-existing injuries to his lower back, head, neck, right leg and right hip [and] was required to undergo a surgical procedure to his lower back.” Marsh sued New York. The State moved for summary judgment.
Having assumed physical custody of incarcerated persons, who cannot protect and defend themselves in the same way as those at liberty can, the State owed a duty of care to safeguard them. That duty did not, however, render the State an insurer of incarcerated persons’ safety. Like other duties in tort, the scope of the State’s duty to protect incarcerated persons was limited to risks of harm that were reasonably foreseeable.
The State also owed a duty of ordinary care to provide its charges with adequate medical care. To prove that the State failed in its duty and committed medical malpractice, a claimant must establish by a preponderance of the evidence that the State departed from good and accepted standards of care and that such departure was a substantial factor or a proximate cause of the alleged injuries.
Whether Marsh’s claim was grounded in negligence or medical malpractice, where there were medical issues raised by the facts and they were not within the ordinary experience and knowledge of lay persons, expert medical opinion was a required element of a prima facie case. Marsh’s attorney did not argue for denial of the motion based on the State’s failure to submit an expert opinion. But the State nevertheless had the initial burden to establish its entitlement to summary judgment and the law required an expert opinion irrespective of whether the claim was framed as one for negligence or medical malpractice.
Here, the State did not submit an expert opinion in support of summary judgment. Thus, to meet its burden on the motion, the State would need to establish either that medical decisions were not at issue or, if medical decisions were at issue, that they were within the ordinary experience and knowledge of lay persons. Based on the evidence submitted by the State in support of the motion, the Court found that medical decisions were in issue and they were not within the ordinary experience and knowledge of lay person.
The medical records showed the following facts: Starting on or before July 27, 2015, Marsh went regularly to sick call complaining of lower back, hip and leg pain and pain when he ambulated. Sometimes he walked to sick call and other times he went by wheelchair or stretcher. A radiologist found that X-rays done on August 25, 2015 showed: “[d]egenerative lower lumbar disc disease L4-L5. Mild to moderate degenerative lower lumbar spondylosis L4 & L5. Muscle spasm with loss lumbar lordosis.” Marsh was admitted to the infirmary and placed on bed rest on December 6, 2015. He was treated for his back and leg pain with Ibuprofen, Toradol, Percocet and other medications. On December 11, 2015, an MRI was requested by Nelson Muthra. Progress notes indicated that Marsh was ambulating at times without assistance. He was discharged from the infirmary on December 21, 2015.
On January 5, 2016, a physical therapy consultant wrote in her report: “1) PT benefit from st. cane & a soft brace. 2) Highly recommend further tests to R/O any structural/soft tissue issues spine/LB region,” and “No PT — refer as needed tests — if appropriate […] Pt’s pain has progressed & is affecting & amb & transfers”.
But an MRI was not done until after Marsh’s fall on January 14, 2016, when he was taken by ambulance to Mount Vernon Hospital, where he stayed until January 18, 2016. After returning to Sing Sing, Marsh was seen by an orthopedic consultant, who recommended back surgery. The surgery was performed at Westchester Medical Center on November 4, 2016. The surgery included a laminectomy, disc excision and spinal fusion.
Marsh also testified to the following facts at his deposition: He described the location and intensity of the pain he experienced in his back and leg, and how it made it difficult for him to get around. He acknowledged seeing a physical therapist, but he did not recall being given a course of therapy and asserted that when he did see the therapist, she said she could not work with him until after he had an MRI. His pain worsened and he was admitted to the infirmary, where he was on bed rest for some time. When he was discharged from the infirmary, he was given crutches and a “flats pass” to move him from the third floor to the first floor because he could not go up the stairs. At the time, he was told he would stay on the first floor until he had an MRI or saw his healthcare provider. Before he had an MRI or went to an outside facility, he was moved back to the third floor, where he was housed on the day of the accident. On that day, January 14, 2016, a correction officer told him he had sick call and would get a ticket if he did not show up. He had to go down two flights of stairs. He asked for help but nobody came and they had taken back his cane. He limped to the stairs, then holding the railing he made it down the first flight, but his leg gave out three or four steps down the second flight and he fell,
In the Court’s view, once Marsh sought medical intervention for his back pain and he was receiving treatment, decisions with respect to not only the treatment of his condition, but also where he would be housed and “whether and how he would ambulate within the facility by reason of that condition, became matters of medical care and treatment, rather than simple classification and assignment”. But the Court cautioned that Marsh had the burden at trial of establishing, with expert proof, that the State failed in its duty to provide him with adequate medical care, and that such failure was a proximate cause of his injuries.
The State’s argument for summary judgment on the element of proximate cause also suffered from a lack of expert evidence. Where, as here, medical issues were not within the ordinary experience and knowledge of lay persons, expert medical opinion was required to establish that the State’s alleged negligence caused or contributed to Marsh’s injuries. The same requirement applied to the State in proving that Marsh’s placement on the third floor and lack of assistance did not cause or contribute to his fall. Instead of adducing affirmative evidence of entitlement to summary judgment relief, the State argued there was no admissible evidence that Marsh needed assistance or an assistive device to get to sick call, needed to be housed on a lower floor, and sustained injury or required surgery as a result of the fall. The motion was brought by the State, not Marsh, and the evidence proffered by the State neither established that the claim had no merit, nor eliminated, any material issues of fact from the case.
The State highlighted several disputed facts in its moving papers. On the one hand, the State argued that the evidence showed Marsh was “malingering,” and on the other hand, that it was just as likely the surgery was needed to address his prior condition as opposed to injuries from the fall. Marsh’s condition prior to the fall, whether he needed assistance with ambulating and climbing stairs, and whether the fall injured him or exacerbated his condition, presented material issues of fact requiring a trial and expert testimony.
The State did not meet its burden to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact. The motion for summary judgment was denied.