Kagan v. State

Decision Date17 June 1996
PartiesDale A. KAGAN, Respondent, v. STATE of New York, Appellant.
CourtNew York Supreme Court — Appellate Division

Dennis C. Vacco, Attorney-General, New York City (Peter G. Crary and Victor Paladino, of counsel), for appellant.

Koob & Magoolaghan, New York City (Elizabeth L. Koob, of counsel), for respondents.

Before MILLER, J.P., and SULLIVAN, PIZZUTO, ALTMAN and FRIEDMANN, JJ.

MILLER, Justice Presiding.

It is well settled that the State owes a duty to its incarcerated citizens to provide them with adequate medical care. Today, we reaffirm that principle and uphold, in large measure, an award of damages to an inmate who lost the hearing in one ear as a result of endemic and systematic indifference to her repeated, legitimate medical complaints by the security and medical staff at Bedford Hills Correctional Facility.

The Court of Claims found that prison employees had committed acts of ministerial negligence and awarded damages in the total amount of $304,000 for the: (1) failure to provide adequate bedding; (2) failure to provide adequate medical care resulting from the delays in presenting the claimant for nurse's screenings; and (3) unreasonable, six-month delay before providing a comprehensive hearing evaluation. While the court's sua sponte adoption of a theory of ministerial negligence is not clearly explained, contrary to the conclusion reached by the dissent, we sustain the judgment except as to the failure to provide adequate bedding. The claimant has proved her case under any one of three distinct legal theories.

The facts underlying this appeal warrant close scrutiny. While temporarily housed in a "satellite unit" of the Bedford Hills Correctional Facility (hereinafter Bedford Hills) in late 1987, the claimant, Dale Kagan, repeatedly requested, and was denied, additional bedding during a cold spell. Instead, she was told by the Sergeant to "sleep in [her] coat". Allegedly as a result of the failure to provide the claimant with adequate bedding, she developed an upper respiratory infection.

Medical treatment to prisoners at Bedford Hills is supposed to be provided, in the first instance, by nurses who see and screen prisoners. The nurses treat minor injuries and conditions themselves, and they refer the more serious cases to a physician on the prison staff. This system is designed to provide an on-site triage and screening procedure that is required before an inmate can be scheduled for a physician's appointment. On or about December 26, 1987, the claimant signed up for a nurse's screening but she was unable to remain to complete the appointment.

At first, her cold symptoms appeared to subside, but when they resurfaced, the claimant signed up repeatedly for nurse's screenings. As early as January 2, 1988, the claimant's medical record had a notation for a follow-up visit with a doctor. On January 3, the claimant indicated on the sign-up sheet that she had a bleeding ear and specifically requested to see Dr. Blumenfeld. On January 4 the floor officer recorded the claimant's request for a physician's appointment because she had an infected and bleeding ear as early as 8:14 A.M. It was not until 2:30 P.M., after the on-duty physician had already The claimant commenced the instant action with a pro se claim that did not mention, much less rely upon, any distinct legal theories of liability. Later, her attorneys served a medical malpractice certificate of merit and counsel's opening statement clearly raised claims of negligence. The Court of Claims found that there had been no medical malpractice, but that the claimant had suffered injuries as a result of actionable ministerial neglect. Regardless of the label to be attributed to the theory of liability, the claimant established that she was owed a duty of care which, in part, was breached as a result of ministerial neglect. Furthermore, as an alternate ground in support of affirmance (see, Parochial Bus Systems v. Board of Educ. of the City of N.Y., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241), we find that the evidence demonstrated that the claimant proved her entitlement to recover damages under theories of medical malpractice and general negligence as well. There were numerous concurrent causes for the claimant's injuries. While a rose by any other name would smell as sweet, the name one attributes to the negligent acts committed by prison personnel in this case cannot mask the inescapable conclusion that as a direct result thereof, the claimant lost the hearing in one ear.

left the facility for the day, that the claimant was presented for a nurse's screening, and the nurse attempted to locate a doctor for her. Moreover, on January 5, the floor officer recorded the claimant's runny ear and vomiting as early as 7:30 A.M. However, it was not until later that day, after she had endured days of pain, fluid, and a bloody discharge from her ear, repeated vomiting, and lost first her equilibrium, then the hearing in her right ear, that the claimant was at long last "squeezed in" for a doctor's appointment off-site, even though on each preceding day a doctor was present and available at the facility, and when one was not available on-site, one was always available on an "on call" basis. The evidence adduced at trial demonstrated that this delay of diagnosis and treatment proximately caused the claimant to lose the hearing in her right ear.

MINISTERIAL NEGLECT

A ministerial matter "shall mean an administrative act carried out in a prescribed manner not allowing for substantial personal discretion" (Public Officers Law, § 73[1][d]. It is further established that there is no governmental immunity for the negligent performance of these ministerial duties (see, Marx v. State of New York, 169 A.D.2d 642, 564 N.Y.S.2d 774; National Westminster Bank, USA v. State of New York, 155 A.D.2d 261, 546 N.Y.S.2d 864, aff'd 76 N.Y.2d 507, 561 N.Y.S.2d 541, 562 N.E.2d 866). Although ministerial duties have more traditionally been attributed to administrative acts, such as the recording of deeds and the timely signing and return of warrants, they also include the release of prisoners from disciplinary confinement (see, Gittens v. State, 132 Misc.2d 399, 504 N.Y.S.2d 969) and the care of prisoners.

The Court of Appeals has defined discretionary or quasi-judicial acts as "involv[ing] the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" (Tango v. Tulevech, 61 N.Y.2d 34, 41, 471 N.Y.S.2d 73, 459 N.E.2d 182). We shall demonstrate herein that non-discretionary medical standards, known as "protocols", had been adopted by Bedford Hills. These protocols governed administration of medical care to prisoners. The claimant demonstrated that several of these protocols were breached and as a direct result thereof, she lost her hearing. Therefore, the claimant's claims can be characterized as a form of ministerial neglect.

The rendering of medical services to prisoners at Bedford Hills has been the subject of prior litigation, as the care provided has previously been found to be less than desirable. In Todaro v. Ward, 431 F.Supp. 1129, 1160, aff'd 565 F.2d 48, it was found that because the "administrative and record keeping procedures at Bedford Hills [were] grossly inadequate", new safeguards and protocols would be instituted to conduct sick call, to provide adequate nurse screening and reasonably prompt access to a physician, and It is settled that an inmate, who "must rely on prison authorities to treat [the inmate's] medical needs" (Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251), "has a fundamental right to 'reasonable' * * * and 'adequate' * * * medical care" (Powlowski v. Wullich, 102 A.D.2d 575, 587, 479 N.Y.S.2d 89 [citations omitted]. Further, it is the State's duty to render medical care "without undue delay" and, therefore, whenever "delays in diagnosis and/or treatment [are] a proximate or aggravating cause of [a] claimed injury", the State may be liable (see, Marchione v. State of New York, 194 A.D.2d 851, 855, 598 N.Y.S.2d 592). In Stanback v. State of New York, 163 A.D.2d 298, 557 N.Y.S.2d 433, the failure to promptly and correctly diagnosis an inmate's injured knee resulted in an unreasonable delay of treatment. There, the court stated "[t]hese acts and omissions amount to something more than an honest error in professional judgment" (supra, at 298, 557 N.Y.S.2d 433). The same can be said of the failure of Bedford Hills to provide the claimant with adequate medical care after she signed up for a nurse's screening and requested to see a physician on three consecutive days, and complained of a bleeding ear as early as January 3, a condition that the State's witness, Nurse Rosado, testified qualifies as an emergency, requiring immediate medical attention. Bedford Hills failed to meet its duty of care because it was ministerially negligent in complying with its own administrative procedures as set forth in its own, mandated, protocols.

to insure that medical appointments were scheduled. In the instant case Bedford Hills failed to meet these obligations, and in the process violated its own administrative protocols. As was explained by the court in Todaro v. Ward, supra, the appointed court monitor specifically criticized Bedford Hills' nurses for not looking at prior screening notations to enable them to evaluate the patient as presenting with a continuing problem. Such omissions continued with the care provided to the claimant.

THE PROTOCOLS

The evidence established that prison personnel violated numerous distinct administrative protocols which were implemented in the wake of Todaro to improve medical care to prisoners. As a result, the claimant was denied prompt attention which would have preserved her hearing. They include:...

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