Bektic–Marrero v. Goldberg
| Decision Date | 07 March 2012 |
| Docket Number | No. 11 Civ. 1781(CM).,11 Civ. 1781(CM). |
| Citation | 282 Ed. Law Rep. 1057,850 F.Supp.2d 418 |
| Parties | Nina BEKTIC–MARRERO, as Administrator of the Estate of Jose Marrero, on her own behalf, and as a Parent and natural guardian of her infant child, S.M., Plaintiffs, v. Randy GOLDBERG, M.D., Westchester County Health Care Corporation, Westchester Medical Center, New York Medical College, Andrew Spano, Joseph Spano, Anthony Amicucci, Gail Bailey–Wallace, M.D., and June Yozzo, R.N., Defendants. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
Michael Anthony Deem, Michael A. Deem, P.L.L.C., Ossining, NY, for Plaintiff.
William Harold Bave, Wilson, Bave, Conboy, Cozza & Cozza, P.C., Jane Hogan Felix, White Plains, NY, Margaret O'Connor, Kaufman Borgeest & Ryan LLP, Dennis John Dozis, Kaufman, Borgeest & Ryan, LLP, Valhalla, NY, for Defendants.
DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS, AND DENYING PLAINTIFF'S MOTION FOR LIMITED DISCOVERY
Before the Court is a series of four motions—one from plaintiff, and one each from three groups of moving defendants—each addressed to a unique constellation of state and federal claims. In the end, resolving these motions does little to advance the litigation in a meaningful way.
The motions are denied, except that the Monell claim against Defendant New York Medical College is granted.
Plaintiff Nina Bektic–Marrero (“Plaintiff”) brings this suit on behalf of her deceased husband, Jose Marrero (“Marrero”), acting in her role as administrator of his estate. ( See Felix Decl., Ex. A, ¶¶ 1, 6.) She also brings claims on her own and her son's behalf, as well as claims derivative of Marrero's. The suit arises out of Marrero's medical treatment while he was in the custody of the Westchester County Department of Correction (the “Westchester DOC”). 1
According to the Complaint, Defendant Westchester County (the “County”) is responsible for the administration of the Westchester DOC. ( Id. ¶ 9.) The County entered into written contracts with Defendants Westchester County Health Care Corporation (the “WCHCC”), Westchester Medical Center (the “WMC”), and New York Medical College (“NYMC”), to provide medical care and treatment to Westchester DOC inmates. ( Id. ¶ 24.) The WCHCC is a public benefit corporation organized under New York law ( id. ¶ 10), and the WMC is a medical services corporation organized under New York law. ( Id. ¶ 11.) NYMC is a private medical school organized under New York law as a not-for-profit corporation. ( Id. ¶ 12.) The Westchester DOC, the WMC, and NYMC all share the same campus in Valhalla, New York.
Defendants Gail Bailey–Wallace, M.D., Randy Goldberg, M.D., and June Yozzo, R.N., are among the individuals who administered the challenged medical care to Marrero during the term of his incarceration. Dr. Bailey–Wallace is alleged to be the “acting Medical Director for Chronic Care Services at Correctional Health Services, a division of [NYMC], at the [Westchester] DOC.” ( Id. ¶ 16.) Dr. Goldberg is the “acting Assistant Medical Director for Chronic Care Services at Correctional Health Services, a division of [NYMC], at the [Westchester] DOC.” ( Id. ¶ 17.) Yozzo, a licensed nurse, is alleged to be the “Health Care Coordinator” for the Westchester DOC. ( Id. ¶ 18.)
Finally, Defendant Andrew Spano was, at the times relevant to the Complaint, Westchester County Executive ( id. ¶ 13); Joseph Spano was the Commissioner of the Westchester DOC ( id. ¶ 14); and Anthony Amicucci was the “Warden” of the Westchester DOC. ( Id. ¶ 15.)
On June 10, 2009, Marrero was committed to the custody of the Westchester DOC on a parole violation. During the intake process, he informed the Westchester DOC that he was a long-time and current smoker, and that both his mother and sister suffered laryngeal cancer. ( Id. ¶¶ 34–35.) In October 2009, Marrero informed Dr. Goldberg personally that his mother and sister suffered from esophageal cancer. ( Id. ¶ 39.)
In September and October 2009, Marrero submitted several “sick call slips,” complaining that he felt a foreign object in his throat, which interfered with his ability to speak or swallow. However, on each visit to the infirmary, the medical staff only lightly touched the outside of his throat and assured him that the sensation would go away on its own. No oral examination was performed, and no antibiotics or diagnostic tests were prescribed. ( Id. ¶¶ 36–38.)
In October 2009, Marrero's condition has worsened to the point where he could no longer swallow solid food, had great difficulty swallowing water, and could barely speak. Even so, no oral exam or diagnostic test was prescribed. Rather, unidentified medical staff simply pureed his food, and crushed his diabetes and hypertension pills and mixed them with water. ( Id. ¶¶ 40–42.)
Between October and November 2009, prison staff neglected to puree Marrero's food for him. As a result, he could not eat at all, and he lost thirty pounds over six weeks. The signs of Marrero's illness were so obvious that several correction officers and civilian employees ordered the ailing Marrero to report to the infirmary. Marrero was switched to a liquid diet in November 2009, but even still, no oral exam was conducted, and no diagnostic test or antibiotic medication was prescribed. ( Id. ¶¶ 43–45.)
Finally, after numerous telephone calls to Dr. Bailey–Wallace, Dr. Goldberg, and Yozzo, Marrero was given a barium swallow test—the first diagnostic test ordered after nearly three months of apparent distress and severe weight loss. After Dr. Goldberg reviewed the result, he told Marrero that “it may be cancer,” and ordered blood tests. Although the blood tests quickly revealed that Marrero had cancer, Dr. Goldberg did not inform Marrero of this finding, Marrero was not referred to an oncologist at this time. ( Id. ¶¶ 46–51.)
Approximately four weeks later, in early December 2009, Marrero was scheduled for a computed tomography (“CT”) scan. The scan revealed a cancerous mass in Marrero's throat. Marrero was not immediately informed of these results or referred to an oncologist. ( Id. ¶¶ 53–54.)
On December 12, 2009, Marrero came to the Westchester DOC infirmary, complaining that he could no longer swallow even water. At this point, Plaintiff alleges, the results of the blood test and CT scan—both of which indicated a cancerous growth in Marrero's throat—were known. Nevertheless, Westchester DOC “medical personnel” told Marrero that his throat condition would “go away” on its own. A few hours later, Marrero collapsed as a result of dehydration and malnutrition. ( Id. ¶¶ 55–56.)
Marrero was then admitted to the “I Block,” described in the Complaint as a medical wing of the Westchester DOC. Only then was he informed that he had cancer. Dr. Goldberg told Marrero that the blood tests, the results of which had been known for weeks, revealed the cancer; he also told Marrero that he had about six months to live. ( Id. ¶¶ 56–58.)
When she heard the news, Plaintiff (Marrero's wife) asked Yozzo, and other Westchester DOC personnel, for copies of Marrero's medical records. She hoped to use these to have Marrero's parole restored and to seek a second medical opinion. However, Yozzo denied or delayed responding to these requests. Plaintiff also asked Yozzo to provide Marrero with Ensure (a liquid dietary supplement), and offered to supply it to Westchester DOC herself, if necessary. Yozzo expressly denied this request as well. ( Id. ¶¶ 59–61.)
In mid-December 2009, a biopsy confirmed that the growth in Marrero's throat was a Stage IV carcinoma; the same day, (unidentified) doctors discovered a second mass on Marrero's liver. Plaintiff was only informed of her husband's biopsy results weeks later, by Dr. Bailey–Wallace. ( Id. ¶¶ 62–65.)
Marrero received some of his intensive medical care, including his biopsy, at the WMC. Plaintiff alleges that, the day before each of Marrero's visits to the WMC, Marrero was transferred to the Westchester DOC's I Block and given intravenous fluids. Plaintiff alleges “on belief” that that “the sole purpose and intent of [the] IVs was to obfuscate the true nature of Mr. Marrero's physical condition and conditions of confinement,” ( id. ¶ 66–67), i.e., his weight loss and malnutrition.
In late December 2009, or early January 2010, Marrero was transferred from the Westchester DOC to a secure wing of the WMC. Immediately upon his arrival, doctors inserted a feeding tube into Marrero's stomach, through which he was fed Ensure. ( Id. ¶¶ 69–70.) In January 2010, Marrero was scheduled for and received chemotherapy at the WMC. His parole was restored on January 29, 2010, and he continued to receive chemotherapy at the WMC in February 2010. ( Id. ¶¶ 74–75.)
From March through May 2010, Marrero continued to receive treatment at other private facilities; however, his physicians informed him that because the treatment began only after the cancer progressed to Stage IV, little could be done. ( Id. ¶¶ 76–78.) Marrero died of cancer-related causes on September 23, 2010. ( Id. ¶ 80.)
Plaintiff alleges that, within ninety days of the events giving rise to Marrero's underlying tort claims, a written Notice of Claim was served on the County, the WCHCC, and the WMC ( id. ¶ 19); and that, within ninety days of Marrero's death, another written Notice of Claim was served on the same Defendants. ( Id. ¶ 20.) There is no dispute—at this stage, at least—that Plaintiff's claims were timely commenced, and consistent with New York's notice of claim statutes.
On February 15, 2011, Plaintiff obtained letters of limited administration, granting her authority to file and prosecute the claims that accrued to Marrero before his death. ( Id. ¶ 6); see alsoN.Y. Estates, Powers and Trusts Law § 11–3.2(b) (...
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