Emmanuel v. State, 2022-50311

CourtNew York Court of Claims
Writing for the CourtWALTER RIVERA, JUDGE
PartiesVirdie Emmanuel, Claimant, v. The State of New York, Defendant.
Docket Number2022-50311,Claim 129877
Decision Date31 January 2022

Virdie Emmanuel, Claimant,

The State of New York, Defendant.

No. 2022-50311

Claim No. 129877

Court of Claims

January 31, 2022

Unpublished Opinion

For Claimant:


By: Timothy J. Roque, Esq.

For Defendant:


Attorney General of the State of New York

By: Albert E. Masry, Assistant Attorney General



The following papers numbered 1-3 were read and considered by the Court on the State's Motion for Summary Judgment:

Notice of Motion State's Attorney's Supporting Affirmation, Exhibits and Memorandum of Law 1

Attorney's Affirmation in Opposition, and Exhibits 2

State's Attorney's Affirmation in Reply 3

The instant claim arises from the State's alleged cancellation of claimant's scheduled encephalocele [1] resection surgery on June 29, 2015, claimant's involuntary discharge from Elmhurst Hospital Center (Elmhurst), and a delay in rescheduling claimant's surgery until August 11, 2015. [2] By Decision and Order filed on January 30, 2019, the Court (Mignano, J.) dismissed five of the claim's six causes of action for lack of jurisdiction. [3] The single remaining cause of action against the State is for negligence. The State now moves for summary judgment as to liability. Claimant opposes the motion.

The State's motion is supported by an attorney's affirmation and copies of: the pleadings (Exs. A-D); transcripts of depositions of claimant (Ex. E), Roy Snyder, Deputy Superintendent of Security for Bedford Hills Correctional Facility (Bedford) (Ex. F) and Brooke Blaise, Assistant Director of Health Services for the Department of Corrections and Community Supervision (DOCCS) (Ex. G); Progress Notes (Exs. E-1, E-2); Watch Commander's Logbook (Ex. F-1); Email correspondence (Ex. G-1); Note of Issue (Ex. H); claimant's medical charts from DOCCS (Ex. I), Elmhurst (Ex. J) and Westchester Medical Center (Ex. L); and DOCCS Policies and Procedures for the Operation of Outside Hospital Detail (Ex. K).

Summary of the Evidence

The State did not submit an affidavit by someone with knowledge of the facts as required by CPLR 3213 (b), and claimant did not address this issue in her opposition to the motion. The State's motion is nonetheless supported by the transcripts of three depositions, which constitute "other available proof" (CPLR 3212 [b]). Although the transcript of Roy Snyder's deposition is unsigned, the State represents that Snyder was sent a copy of the transcript (State's Post-Trial Memorandum, p 2, n 1). Claimant's deposition transcript is also unsigned, but the transcript is certified. Under the circumstances, the Court considers the aforesaid deposition transcripts to be admissible evidence (see CPLR 3116 [a] [deposition may be used where it was sent to witness who then fails to sign it]; Luna v CEC Entertainment, Inc., 159 A.D.3d 445, 446 [1st Dept 2018] [unsigned but certified deposition transcript of party opponent may be used as admission]).

The medical records and the deposition testimony of claimant show the following facts. While claimant was incarcerated at Rikers Island Correctional Facility (Rikers), she had "severe headaches," two broken feet and a staph infection called "MSRA" (Ex. E [claimant's depo]: 19; Ex. J [Elmhurst Hospital chart], pp 25, 29). [4] Spinal fluid was leaking from her nose (Ex. J, pp 41, 77; Ex. E: 30-31). Claimant also suffered from Crohn's Disease, Rheumatoid Arthritis and Fibromyalgia, and she was morbidly obese (Ex. J, pp 25, 29). She saw an ENT [5] doctor at Elmhurst because of the headaches (Ex. E-2). She had a CT scan on June 22, 2015 (Ex. J at p. 106). The doctor told her that she had an encephalocele, which claimant understood to be a condition in which the brain is protruding outside of the skull (Ex. E: 30). The doctor also told her that it was an urgent situation and she would have a 30% chance of surviving the surgery (Ex. E: 34-34, 39). Encephalocele resection surgery was scheduled at Elmhurst for June 29, 2015 (Ex. E-2 [progress note]). Claimant was transferred to Bedford on June 24, 2015, five days before her scheduled surgery. Notes in claimant's certified DOCCS medical chart indicate that on June 26, 2015, an ENT doctor named Dr. Tong called Bedford to inquire about claimant's upcoming surgery at Elmhurst, stating that the surgery was a "life-saving procedure," and that Dr. Tong would perform "pre-op" on claimant after her admission on June 28, 2015 (Ex. I [DOCCS chart], p 22). It was also noted in the chart that "Albany approval" would be sought (id.).

Claimant was admitted to Elmhurst on June 28, 2015. A nurse's note from June 29, 2015, the day of the scheduled surgery, states that "patient has right foot brace due to fracture, denies pain able to ambulate short distances by slf. [...] patient on contact precaution due to MRSA, [6] isolation maintained in private room, officers asked to wear PPE for protection" (Ex. J, p 96). Claimant testified that she was brought to a pre-op area at Elmhurst, where the ENT doctor she had previously seen spoke with her. While claimant waited on a gurney in the hallway, her doctor explained to the correction officers (COs) accompanying claimant that they could not come into the operating room (OR) due to claimant's medical condition. Claimant recalled the doctor saying that because of her MRSA and "immunosuppression," they "needed to do the surgery in a triple sterile OR room and that no one that was non-medical was going to be allowed in the room for my own safekeeping and sterility" (Ex. E: 71-72). One of the COs said it was Bedford policy for a CO to remain in the OR during the surgery (Ex. E: 74-76). Claimant would not have minded having an officer in the OR as long as the officer's presence did not make the OR less sterile (Ex. E: 77).

A progress note in claimant's chart signed by a Dr. Wang provides, in pertinent part:

"Patient unable to have surgery done today because OR staff notified by COs of Bedford that patient must be accompanied by COs throughout the course of surgery. Elmhurst policy prohibits non-medical staff from being present in the OR. A compromise was suggested whereby the COs could remain in the OR until general anesthesia is induced and stay just outside the OR until patient is ready to be extubated. The Lieutenant at Bedford declined and stated that the COs had to be in the OR. After conferring [] risk management and asking the patient her comfort level [] having COs in her case which she is not, the decision was made to reschedule the case [...]."

(Ex. J, p 106).

Brooke Blaise, the Assistant Director of Health Services at DOCCS, testified at her deposition that Elmhurst was not one of their "contracted hospitals" (Ex. G, p 38). Asst. Dir. Blaise received an email from Dr. Bailey-Wallace, the Regional Medical Director in the Central Office of DOCCS, on the day of claimant's scheduled surgery (Ex. G, p 29). The email states in pertinent part:

"I spoke with Dr. Wang of Elmhurst Hospital. She reports the procedure should be done "sooner rather than later." They are comfortable with the officers being in the ante area - not really a room - just outside of the OR They would require the handcuffs be removed once the pt is under general anesthesia as they do not want to be liable in case she falls off the bed. They however cannot have the officers inside the OR. Meanwhile they can reschedule her for admission 7/12/15 for surgery 7/13/15"

(Ex. G-1).

Asst. Dir. Blaise forwarded the email to Margaret Franklin, the Director of Nursing, Captain Paul Artuz and Deputy Superintendent of Security Roy Snyder to let them know "that this surgery did not have to happen on that particular day, that we could schedule it within the next, I guess, week or two, right? And that way we would have a little bit more time to figure out the security component of that particular OR" (Ex. G, pp 38-39). Claimant was discharged from Elmhurst and returned to Bedford (Ex. J. p 69). A month later on July 28, 2015, an ENT doctor at Westchester Medical Center (WMC) examined claimant and scheduled her for "elective" surgery (Ex. I, p 111). [7] WMC was one of Bedford's contracted hospital facilities (Ex. G [Blaise depo.], p 42). The ENT doctor at WMC who evaluated claimant wrote in a progress note that "prior surgery planned a[t] elmhurst but cancelled due to security reason" (Ex. I, p 110). The surgery was rescheduled for...

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