|Claimant short name:||BENITEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||HENRY BENITEZ, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Belinda A. Wagner, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 28, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated at a state correctional facility, filed this claim in which he alleges that defendant's agents at Upstate Correctional Facility (CF) were negligent in failing to order a second liver biopsy to properly monitor his liver disease. The trial of this claim was conducted by videoconference on May 10, 2018, with claimant appearing at Auburn CF in Auburn, New York, defendant appearing at Upstate CF in Malone, New York and the Court sitting in Saratoga Springs, New York. Claimant presented his own testimony; defendant presented no witnesses. The Court received into evidence twenty-one exhibits offered by claimant and three exhibits offered by defendant. After listening to the testimony of claimant and observing his demeanor as he testified, and upon consideration of that evidence, all of the other evidence received at trial, the arguments of the parties at trial and in post-trial submissions, and the applicable law, the Court concludes that claimant has failed to make a prima facie showing that defendant is liable to him.
Claimant testified that he unknowingly contracted the hepatitis C virus (HCV) in March 1996 prior to being incarcerated and did not discover that he had been infected until September 2002 when he was informed by Auburn CF medical personnel that blood tests indicated that he may have contracted HCV and that he should undergo a liver biopsy. Claimant's medical records state that claimant tested positive for hepatitis C antibody on July 25, 2002 (Claimant's Exhibit 3). Claimant testified that after he was transferred to Upstate CF, Dr. Craig Richards submitted a request that claimant receive hepatitis C treatment, which was deferred pending a liver biopsy. Claimant's medical records state that Dr. Richards submitted a request to treat claimant with pegylated interferon on April 29, 2003 (id.). Claimant underwent a liver biopsy on July 23, 2003 at Alice Hyde Medical Center and was diagnosed with "Chronic hepatitis Grade I" (Claimant's Exhibit 4; see also Claimant's Exhibit 3 ["liver bx grade I, no necrosis or degeneration, chronic hep C"]). Claimant's Ambulatory Health Record (AHR) reflects that claimant had "dirty urine" and a positive test for narcotics in January 2003 and that he was advised by Dr. Richards in March 2003 that he no longer met the criteria for hepatitis C treatment (see Defendant's Exhibit A, at 8-12). Claimant testified that in August 2003, Dr. Lester Wright, then the Chief Medical Officer for the Department of Corrections and Community Supervision (DOCCS),(1) stated that claimant's liver was significantly intact and recommended that claimant's liver function be monitored through blood tests, i.e. liver functioning tests (LFTs), and indicated that further treatment may be needed if there was significant increase in levels indicating fibrosis. Claimant's AHR reflects that on August 12, 2003, claimant was "verbally informed that according to liver [biopsy] of 7-23-03, and result of chronic Hep[atitis] Grade I, he is not a candidate for [treatment] @ this time" (Defendant's Exhibit A, at 16). Claimant testified that he subsequently requested hepatitis C antiviral therapy after being informed in 2003 that he would not receive treatment, but was denied and that he filed grievances concerning the denial of medical treatment. No grievances filed by claimant relating to the denial of hepatitis C antiviral therapies were offered into evidence by claimant.
Claimant testified that Nurse Practitioner (NP) William Parmer was his medical provider at Upstate CF from 2008 to 2011, and that claimant's liver function was repeatedly monitored with LFTs. Claimant testified that NP Parmer notified claimant that his liver enzymes were elevated and fluctuated throughout 2010 and told him to continue with blood tests to monitor liver function. According to claimant's AHR, he was seen by NP Parmer on April 5, 2010 for hepatitis C management, who noted that claimant had been "consistently refusing all blood work, but did consent to have blood work approx 3 weeks ago" (id., at 63 [emphasis in original]). Claimant's medical records state that NP Parmer advised claimant on April 7, 2010 that his hepatitis C viral load was "mildly high" and that his "liver functions were mildly elevated related to [his] Hepatitis C disease" (Claimant's Exhibit 5, at 1). According to claimant's medical records, NP Parmer reviewed the test results with him and provided "extensive Hep C management education" on April 12, 2010 (see Defendant's Exhibit A, at 64), and informed claimant that his hepatitis C genotype was Type 4 on May 31, 2010 (see Claimant's Exhibit 6). Claimant's medical records reflect that NP Parmer reviewed recent lab work with claimant on July 8, 2010 and provided "[e]xtensive Hep C management education" (id., at 65), and that NP Parmer advised claimant on December 2, 2010 that his "liver functions remain mildly/moderately elevated probably related to [his] Hepatitis C disease" (Claimant's Exhibit 5, at 2). According to claimant's AHR, claimant was seen by NP Parmer on March 21, 2011, who provided claimant with "extensive" hepatitis C treatment and management education (see Defendant's Exhibit A, at 68). Claimant was again seen by NP Parmer on August 30, 2011, who ordered blood tests and noted that he would "submit [claimant] for Hep C treatment" (id., at 71-72).
Claimant's medical records reflect that NP Parmer thereafter requested an "IFD [infectious disease] consult re: possible candidate for Hep C [treatment]" on September 30, 2011 (see Claimant's Exhibit 10; Defendant's Exhibit A, at 74). Claimant was subsequently seen by Dr. Glenn Schroyer, the infectious disease specialist, on October 12, 2011, who ordered a repeat liver biopsy. Claimant's medical records reflect that claimant underwent a liver biopsy on November 9, 2011 and was diagnosed with "Cirrhosis consistent with hepatitis C Grade 3/4, Stage 4/4" (Claimant's Exhibit 11).
Claimant testified that he repeatedly informed NP Parmer from 2008 to 2011 that he wanted to undergo another liver biopsy to see if he needed hepatitis C antiviral therapy, but NP Parmer did not consider whether he needed a biopsy in violation of DOCCS guidelines, which requires DOCCS medical professionals to consider the necessity of a liver biopsy every five years for HCV positive patients. The Court received the DOCCS Hepatitis C Primary Care Practice Guideline in effect on March 10, 2003, which states that it "represents an approach to the current management of hepatitis C disease that is consistent with community standards of care and is appropriate in our corrections settings" (Claimant's Exhibit 21, at 1). The 2003 Practice Guideline provides that "[s]pecialty evaluation and liver biopsy to confirm the diagnosis of hepatitis, exclude other causes of liver disease, grade the severity of injury, and assess the degree of fibrosis should occur for all patients who are type 1 or 4" and that "[l]iver biopsy will not be mandated for genotype 2 or 3, but should be done if clinically indicated" (id., at 5). The 2003 Practice Guideline further provides that "[s]erial liver biopsies following a baseline study are not routinely indicated except in those who fail treatment or do not initiate treatment where consideration should be given to repeat biopsy every 3 to 5 years to re-stage disease progression" (id., at 7). The DOCCS Hepatitis C Primary Care Practice Guideline in effect on March 29, 2011, provides that "[p]atients with HCV serotypes 1 and 4 should receive liver biopsy unless contraindicated," that "[p]atients with HCV serotypes 2 or 3 should be encouraged to have a liver biopsy, but may be treated without one," and that a "repeat liver biopsy should be considered every 5 years" (Claimant's Exhibit 2 [DOCCS Hepatitis C Primary Care Practice Guideline, at p. 3]). A 2002 National Institutes of Health (NIH) publication received into evidence stated that "a baseline assessment of liver histology [through liver biopsy] offers a valuable standard for subsequent comparisons. However, the appropriate interval for subsequent evaluations is yet to be determined" (Claimant's Exhibit 1, at 7).
Claimant testified that he had refused blood work on "several occasions"(2) between 2003 and 2011 but that he was never informed of the risks of such refusals. Claimant's AHR reflects that he refused LFTs on no less than twenty occasions between December 8, 2003 and December 21, 2009 (Defendant's Exhibit A, at 20-24, 28-30, 32-35, 40-41, 43, 45, 47-48, 51-52, 56, 58-60), including seven refusals during calendar years 2008 and 2009 (see also Claimant's Exhibit 22 [between 2003 and 2012 lab tests ordered 36 times and claimant refused 20 times]). Claimant testified that he had refused medical call outs for hepatitis C management and evaluation, but that he did so because he was tired of asking for a repeat liver biopsy. Claimant's AHR reflects that he refused medical call outs or medical assessment related to the management of his hepatitis C disease on at least ten occasions between October 26, 2004 and June 27, 2011 (see id., at 25-26, 46, 49-50, 57, 61-62, 66-67, 69), including four refusals during the 2008 to 2009 time period. According to claimant's medical records, claimant was advised on October 26, 2004 that routine evaluations were needed every three months for his hepatitis C disease and that his illness may worsen in the absence of evaluations (see id., at 25-26). Claimant also denied or did not recall that he was provided with hepatitis C education on the dates that reflected such and denied that he was advised of the risks of refusing medical evaluations.
Claimant testified that he was denied hepatitis C treatment following the 2011 liver biopsy due to the advanced stage of his disease and his history of non-compliance and was encouraged to continue with LFTs. In a memorandum dated March 8, 2012, claimant was advised by NP Parmer that he was "submitted to the hepatitis C treatment team as a possible candidate for hepatitis C treatment," but that "the treatment team has decided not to initiate treatment due to the advanced stage of [his] hepatitis C disease" (Claimant's Exhibit 13 [emphasis in original]). Further, in an email dated March 20, 2012, DOCCS Chief Medical Officer Dr. Carl Koenigsmann was attributed as stating that claimant had "a ANC below the recommended [treatment] level of 1000," that he had a "low plt count in the face of stage 4 [disease]" which "likely represent[ed] early decompensation of his cirrhosis," and that claimant was reported to be "non compliant with medical care" and that he "regard[ed] this as too many contraindications to [treatment] and cannot approve [treatment]" (Claimant's Exhibit 12). Claimant was advised by Rita Grinbergs, DOCCS Regional Health Services Administrator, in a letter dated March 22, 2012 that "due to other abnormal blood values, and [his] pattern of non-compliance to medical care, the request [for hepatitis treatment] was denied" (Claimant's Exhibit 22). In November 11, 2014, the University of Rochester Medical Center determined that "[d]ue to vascular invasion of HCC" that claimant was "not a candidate for liver transplant" (Claimant's Exhibit 17). On January 13, 2015, Dr. Koenigsmann approved claimant to be treated with the hepatitis C medication Harvoni for 12 weeks (Claimant's Exhibit 19), which claimant testified eradicated the HCV.
Claimant argues that defendant's agents breached a special duty owed to him by failing to timely consider and recommend that he receive a second liver biopsy as required by the DOCCS hepatitis C treatment Practice Guideline. Defendant moved to dismiss the claim at the conclusion of claimant's proof for lack of a prima facie case, arguing that regardless of whether the claim sounded in medical malpractice or medical negligence, claimant failed to adduce expert proof in support of his claim. Claimant opposed the motion, arguing that expert proof was unnecessary because defendant's breach of the DOCCS hepatitis C treatment Practice Guideline constituted a breach of a ministerial duty, and that the failure to order a liver biopsy is not outside the knowledge of a lay person. The Court reserved decision on defendant's motion, which it will now grant for the reasons that follow.
"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990]; see also Kagan v State of New York, 221 AD2d 7, 11 [2d Dept 1996]). The State's "duty to provide medical care and treatment to its prisoners . . . has been defined in terms of both negligence. . . and medical malpractice" (Kagan, 221 AD2d at 16). A claim sounds in medical malpractice rather than negligence, when "the negligence alleged . . . relates . . . to the professional skill and judgment rendered by doctors [in medically treating a patient], rather than information within the common knowledge of a layperson" (Maki v Bassett Healthcare, 85 AD3d 1366, 1367 [3d Dept 2011], appeal dismissed 17 NY3d 855 , lv dismissed and denied 18 NY3d 870 ). Claimants alleging medical malpractice are "required to prove, through a medical expert, that [medical professionals] breached the standard for good and acceptable care in the locality where the treatment occurred and that [such] breach was the proximate cause of [their] injury" (Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]). Only a "narrow category of factually simple medical malpractice cases requires no expert to enable the [factfinder] reasonably to conclude that the accident would not happen without negligence. Not surprisingly, the oft-cited example is where a surgeon leaves a sponge or foreign object inside the [claimant's] body" (Kambat v St. Francis Hosp., 89 NY2d 489, 496 ; see also Rivers v State of New York, 142 Misc 2d 563, 567 [Ct Cl 1989], revd on other grounds, 159 AD2d 788 [3d Dept 1990], lv denied 76 NY2d 701  [expert affidavit unnecessary where medical malpractice related to operation on wrong body part]). However, and regardless of "[w]hether the claim is grounded in negligence or medical malpractice, '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case' " (Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 , quoting Wells v State of New York, 228 AD2d 581, 582 , lv denied 88 NY2d 814 ).
Claimant's arguments that defendant owed him a special duty that was breached when Upstate CF medical providers failed to consider and recommend a repeat liver biopsy, as required by the DOCCS hepatitis C treatment Practice Guideline, that the claim states a cognizable claim of ministerial negligence, and that he is not required to adduce expert proof in support of his claim, lack merit, for the following reasons. As an initial matter, defendant does not owe claimant a "special duty" as claimant argues, but rather, as discussed above, a duty to provide him with reasonable and adequate medical care (see Rivers, 159 AD2d at 789; Kagan, 221 AD2d at 11). The cases cited by claimant in support of his argument that he was owed a special duty are inapplicable to this claim (see McLean v City of New York, 12 NY3d 194 ; Valdez v City of New York, 18 NY3d 69 ), as a claimant must plead and prove a "special duty" only where it is alleged that defendant was negligent in the performance of a governmental function. Here, claimant alleges that defendant was negligent in the performance of a proprietary function, i.e. the provision of medical care (see Schrempf v State of New York, 66 NY2d 289, 294 ), and thus defendant's conduct is subject to "ordinary rules of negligence applicable to nongovernmental parties" (Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 ). Second, contrary to claimant's arguments, defendant's agents did not have a ministerial duty to order a repeat biopsy within five years, as the DOCCS Practice Guideline did not require that a repeat biopsy be done within that time frame. Rather, the 2003 and 2011 DOCCS Practice Guidelines permissively instruct that a repeat biopsy should be considered three to five years after the initial biopsy. Thus, inasmuch as the Practice Guideline did not compel Upstate CF medical staff to consider and order a repeat biopsy, there was no ministerial duty to do so (cf. Ogle v State of New York, 191 AD2d 878, 881 [3d Dept 1993] [State liable for medical malpractice where DOCCS violated its policy mandating preventative therapy]; Kagan, 221 AD2d at 10, 16 [breaches of nondiscretionary protocols constitutes ministerial neglect]).
This claim sounds in medical malpractice because it implicates the medical skill and judgment of Upstate CF's medical personnel with respect to their alleged failure to consider and timely order a second liver biopsy. A medical practitioner's consideration of the need for a second biopsy is not a matter within the ordinary experience or knowledge of a lay person, and thus, testimony by an expert to edify the factfinder on relevant medical issues was required. Inasmuch as claimant did not offer expert evidence to edify the fact finder, claimant failed to establish a prima facie case of medical malpractice.
Claimant's reliance on the doctrine of res ipsa loquitur is misplaced as that doctrine is applicable only in medical negligence claims involving a foreign object left in the body or an unexplained injury to an area remote from the treatment site, and where the injury was caused by an agency or instrumentality within the exclusive control of defendants (see McCarthy v Northern Westchester Hosp., 139 AD3d 825, 827-828 [2d Dept 2016]), facts which are not present here. Furthermore, the evidence does not demonstrate that defendant failed to treat claimant or that it breached another duty to him. To the extent that claimant has made a prima facie case that defendant failed to treat him, the preponderance of the credible evidence demonstrates that claimant was noncompliant with his medical care from 2003 through 2012 and that defendant's efforts to monitor and/or treat his liver disease was impeded by his refusals to undergo blood testing, and thus, the preponderance of the credible evidence does not demonstrate that his injuries were caused by any breach of a duty to provide medical care.
Defendant's motion to dismiss the claim at the conclusion of claimant's case is GRANTED, and claim number 121022 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.
The Chief Clerk is directed to enter judgment accordingly.
August 28, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Although DOCCS was known as the Department of Correctional Services (DOCS) in 2003, the Court will refer to the executive agency by its current name.
2. Unless otherwise indicated, all quotations are to the audio recording of the trial of this claim.