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JUDGE’S INADEQUATE AND IMPROPER RESPONSE TO JURY QUESTIONS REQUIRED A NEW TRIAL IN THIS MEDICAL MALPRACTICE CASE, DEFENSE VERDICT REVERSED.

The Third Department, reversing the defense verdict in this medical malpractice trial, determined the judge’s response to jury questions was inadequate and improper. The judge did not respond at all to one question. And the judge’s response was different from the response discussed with counsel:

… [I]n addition to Supreme Court’s failure to respond in the manner it had discussed with counsel, the response given did not fully or adequately answer the multiple questions asked by the jury. Indeed, the jury note requested “a clear explanation of ‘care and treatment,'” and also asked whether “‘care and treatment’ include[d] paperwork/documentation & policy? Or only the physical ‘care & tx’ given?” Importantly, the question of whether “‘care and treatment’ include[d] paperwork/documentation & policy?” was written by the jury as a stand alone question. The jury’s multiple questions clearly demonstrated that the jurors were confused as to whether, and in what manner, they were permitted to consider the alleged lack of documentation in determining whether defendant deviated from the standard of care. By failing to provide clarification on this point and by stating, matter-of-factly, that care and treatment included only the physical treatment and care given, Supreme Court precluded the jury from fairly considering a critical issue presented at trial … . Meyer v Saint Francis Hosp., Poughkeepsie, N.Y., 2017 NY Slip Op 05286, 3rd Dept 6-28-17

 

HOLDING A GPS DEVICE WHILE DRIVING VIOLATES VEHICLE AND TRAFFIC LAW 1225-D.

The Third Department determined petitioner was properly found guilty of operating a motor vehicle while using a portable electronic device by the appeals board of the Department of Motor Vehicles. Petitioner was driving holding a GPS device:

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We agree with the Appeals Board that a hand-held GPS device meets the statutory definition of a “portable electronic device” inasmuch as it is a “hand-held device with mobile data access” (Vehicle and Traffic Law § 1225-d [2] [a]). In our view, it is mobile and receives data to calculate a driver’s geographical location and to communicate directions. Moreover, a review of the pertinent legislative history regarding Vehicle and Traffic Law § 1225-d demonstrates that the Legislature intended Vehicle and Traffic Law § 1225-d (2) (a) to encompass any portable electronic device that diverts a driver’s attention away from the road and prevents the full use of a driver’s hands … . Thus, we are satisfied that the Appeals Board’s interpretation of Vehicle and Traffic Law § 1225-d (2) (a) as encompassing a hand-held GPS device was rational … .

We also agree that there is ample support for the Appeals Board’s determination that petitioner was using the GPS device. Petitioner concedes that, while he was driving, he was holding the device in his hand and “view[ing] the GPS navigation system to read directions.” Accordingly, we find that the determination was supported by substantial evidence … . Matter of Clark v New York State Dept. of Motor Vehs., 2017 NY Slip Op 05133, 3rd Dept 6-22-17

 

VEHICLE AND TRAFFIC LAW (HOLDING A GPS DEVICE WHILE DRIVING VIOLATES VEHICLE AND TRAFFIC LAW 1225-D)/GPS DEVICE (VEHICLE AND TRAFFIC LAW,  HOLDING A GPS DEVICE WHILE DRIVING VIOLATES VEHICLE AND TRAFFIC LAW 1225-D)

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PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION.

The Third Department determined plaintiff’s expert did not raise a question of fact in this medical malpractice action.  Plaintiff injured her shoulder when she caught a patient (Lisa Clark) who started to fall as she was being transferred from a sideboard to a physical therapy bed. The action was deemed to sound in medical malpractice:

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The gravamen of plaintiff’s claim is that initiating a slide board transfer of Clark with minimal to moderate assistance deviated from the applicable standard of care, thereby causing Clark’s fall and plaintiff’s injuries. Defendants met their initial burden of establishing entitlement to judgment as a matter of law by submitting, among other things, an expert affidavit from a physical therapist opining that utilizing a slide board transfer with minimal assistance did not deviate from the accepted standard of care and noting, based on a review of Clark’s records, that Clark had successfully completed slide board transfers with minimal or moderate assistance on prior occasions … . Thus, “the burden shifted to plaintiff to present expert medical opinion evidence that there was a deviation from the accepted standard of care” … .

In opposition, plaintiff submitted, among other things, the affidavit of an orthopedic surgeon, Matthew J. Nofziger. Even assuming that Nofziger was qualified to provide an opinion with respect to the standard of care used in the physical therapy field for the purpose of assessing the appropriateness of transfer procedures … , we find his affidavit to be insufficient to raise a triable issue of fact. Although Nofziger criticized the assessment of Clark’s physical and cognitive abilities prior to the slide board transfer, he failed to identify or define the applicable standard of care appropriate in this case, merely asserting, in a conclusory manner, that Clark required a higher level of assistance than was provided to her … . Nor did Nofziger set forth any particular actions or procedures that could have prevented Clark from falling, thereby failing to establish the requisite nexus between the alleged malpractice and plaintiff’s injury … . Therefore, even if considered, Nofziger’s affidavit was patently insufficient to raise a triable issue of fact as to whether the transfer procedure used in this case deviated from the applicable standard of care … . Webb v Albany Med. Ctr., 2017 NY Slip Op 05146, 3rd Dept 6-22-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)/MEDICAL MALPRACTICE (EVIDENCE, PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)/EXPERT OPINION (MEDICAL MALPRACTICE, LAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)

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CAUSE OF ACTION BASED UPON THE ALLEGATION THE HIGHWAY SHOULDER WAS TOO NARROW, RESULTING IN CLAIMANT’S STRIKING A DISABLED VEHICLE, PROPERLY NO-CAUSED, STATE ENTITLED TO QUALIFIED IMMUNITY.

The Third Department determined claimant’s negligent highway design action was properly no-caused after a non-jury trial. Claimant struck a disabled vehicle that was on the shoulder of the road. Claimant alleged the four-foot wide shoulder was too narrow. The state was entitled to qualified immunity for the highway design:

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Defendant has a “duty to keep its roadways in a reasonably safe condition,” but “is afforded ‘a qualified immunity from liability arising out of a highway planning decision'” … . Qualified immunity does not attach where defendant’s “study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan,” however, and it falls on defendant to show that its actions resulted from a sufficiently deliberative process … .

Claimant cites various alleged deficiencies in the design of Route 7 relating to his assertion that the four-foot wide shoulder where the disabled vehicle was parked was too narrow. Route 7 is a four-lane freeway originally designed for traffic speeds of 70 miles per hour but, due to it being on a prolonged incline, a third “climbing lane” was added in the westbound direction to allow slow vehicles to make their way uphill without posing difficulties for other drivers. The credible proof at trial indicated that the shoulder width reflected the slower vehicles traveling in a climbing lane that was wide enough, in any case, to allow vehicles to pass a disabled vehicle on the shoulder. The record further reveals that the shoulder design was appropriate under the guidelines in place when the road was designed and built … . Inasmuch as the shoulder “that was installed met the relevant design standards in effect at the time of its construction,” the Court of Claims properly concluded that defendant cannot be held liable for that design … . Lake v State of New York, 2017 NY Slip Op 05142, 3rd Dept 6-22-17

 

NEGLIGENCE (HIGHWAY DESIGN, IMMUNITY, CAUSE OF ACTION BASED UPON THE ALLEGATION THE HIGHWAY SHOULDER WAS TOO NARROW, RESULTING IN CLAIMANT’S STRIKING A DISABLED VEHICLE, PROPERLY NO CAUSED BASED UPON QUALIFIED IMMUNITY)/IMMUNITY (HIGHWAY DESIGN, CAUSE OF ACTION BASED UPON THE ALLEGATION THE HIGHWAY SHOULDER WAS TOO NARROW, RESULTING IN CLAIMANT’S STRIKING A DISABLED VEHICLE, PROPERLY NO CAUSED BASED UPON QUALIFIED IMMUNITY)/TRAFFIC ACCIDENTS (HIGHWAY DESIGN, IMMUNITY, CAUSE OF ACTION BASED UPON THE ALLEGATION THE HIGHWAY SHOULDER WAS TOO NARROW, RESULTING IN CLAIMANT’S STRIKING A DISABLED VEHICLE, PROPERLY NO CAUSED BASED UPON QUALIFIED IMMUNITY)/HIGHWAY DESIGN (IMMUNITY, CAUSE OF ACTION BASED UPON THE ALLEGATION THE HIGHWAY SHOULDER WAS TOO NARROW, RESULTING IN CLAIMANT’S STRIKING A DISABLED VEHICLE, PROPERLY NO CAUSED BASED UPON QUALIFIED IMMUNITY)

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CAP ON STATE MEDICAID FUNDS USED FOR ADMINISTRATIVE COSTS AND EXECUTIVE PAY PROPERLY PROMULGATED BY DEPARTMENT OF HEALTH, CAP ON EXECUTIVE PAY FROM ALL SOURCES EXCEEDED DOH’S REGULATORY AUTHORITY.

The Third Department, in a full-fledged opinion by Justice Peters, over a partial concurrence/dissent, determined the Department of Health’s (DOH’s) regulations placing caps on expenditure of state Medicaid funds for administrative costs and executive pay were properly promulgated. However, placing a cap on executive pay from all sources (called the “soft cap”) was deemed to exceed the Department of Health’s authority (disagreeing with the 2nd Department):

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On balance, the Boreali factors weigh heavily in favor of DOH. Accordingly, we conclude that the subject regulations, to the extent that they place a limit on administrative costs and executive compensation paid for by state funds and state-authorized payments, do not violate the separation of powers doctrine… .

We reach a different conclusion, however, with regard to the soft cap provision … . The soft cap provision … restricts executive compensation paid from all sources except under certain circumstances. Absent a waiver, covered providers may not pay covered executives more than $199,000 from “any” sources of funding without incurring penalties unless (1) the amount of compensation is less than “the 75th percentile of that compensation provided to comparable executives in other providers of the same size and within the same program service sector and the same or comparable geographic area” based on a compensation survey recognized by the Division of the Budget, and (2) the amount has been reviewed and approved by the covered provider’s board of directors or equivalent governing body, and such review “include[d] an assessment of appropriate comparability data” … .

Applying the Boreali analysis, we part company with the [2nd] Department and find that … DOH exceeded its authority in adopting the soft cap portion of 10 NYCRR part 1002. First, by attempting to regulate executive compensation from all sources, DOH was acting on its own ideas of sound public policy. Relatedly, inasmuch as the soft cap provision ventures outside DOH’s legislative mandate to manage the efficient and effective use of taxpayer money for health care and related services, DOH was not engaged in mere interstitial rulemaking … . Finally, DOH has no special expertise in administering regulations governing the overall executive compensation or competence in regulating corporate governance as such. Matter of Leadingage N.Y., Inc. v Shah, 2017 NY Slip Op 05136, 3rd Dept 6-22-17

 

MEDICAID (CAP ON STATE MEDICAID FUNDS USED FOR ADMINISTRATIVE COSTS AND EXECUTIVE PAY PROPERLY PROMULGATED BY DEPARTMENT OF HEALTH, CAP ON EXECUTIVE PAY FROM ALL SOURCES EXCEEDED DOH’S REGULATORY AUTHORITY)/ADMINISTRATIVE LAW (MEDICAID, DEPARTMENT OF HEALTH, CAP ON STATE MEDICAID FUNDS USED FOR ADMINISTRATIVE COSTS AND EXECUTIVE PAY PROPERLY PROMULGATED BY DEPARTMENT OF HEALTH, CAP ON EXECUTIVE PAY FROM ALL SOURCES EXCEEDED DOH’S REGULATORY AUTHORITY)/DEPARTMENT OF HEALTH (MEDICAID, CAP ON STATE MEDICAID FUNDS USED FOR ADMINISTRATIVE COSTS AND EXECUTIVE PAY PROPERLY PROMULGATED BY DEPARTMENT OF HEALTH, CAP ON EXECUTIVE PAY FROM ALL SOURCES EXCEEDED DOH’S REGULATORY AUTHORITY)/EXECUTIVE COMPENSATION (MEDICAID, CAP ON STATE MEDICAID FUNDS USED FOR ADMINISTRATIVE COSTS AND EXECUTIVE PAY PROPERLY PROMULGATED BY DEPARTMENT OF HEALTH, CAP ON EXECUTIVE PAY FROM ALL SOURCES EXCEEDED DOH’S REGULATORY AUTHORITY)

WITNESS TESTIMONY TAKEN OUTSIDE THE INMATE’S PRESENCE REQUIRED ANNULMENT AND EXPUNGEMENT.

The Third Department determined the determination should be annulled and expunged because a witness’s testimony was taken outside the inmate’s presence without his permission:

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In disciplinary hearings, an inmate has a conditional right to call witnesses on his or her behalf and “[a]ny witness shall be allowed to testify at the hearing in the presence of the inmate unless the hearing officer determines that so doing will jeopardize institutional safety or correctional goals” … . The regulation promulgated by the Department of Corrections and Community Supervision requires that, prior to excluding a witness from testifying at the hearing, the Hearing Officer must “determine” that his or her presence will threaten institutional safety or correctional goals and inform the inmate of such reason … . Here, although petitioner conceded at the hearing that one inmate who was in the special housing unit could testify outside his presence, the Hearing Officer failed to set forth, either on the record or on the witness interview sheet, any reason for the other requested witness to testify outside petitioner’s presence. Furthermore, the record does not disclose, with regard to this witness, any reason that the presence of the inmate would jeopardize institutional safety or correctional goals … . As there was no adherence to the Department’s regulation, the determination must be annulled … . Furthermore, although petitioner was asked what questions he would pose to the requested witness and was permitted to hear the recorded testimony of that inmate, he repeatedly objected to the testimony of the inmate being taken outside his presence. As such, petitioner did not waive his right to receive a reason for the exclusion of that witness … . Matter of Kalwasinski v Venettozzi, 2017 NY Slip Op 05139, 3rd Dept 6-22-17

DISCIPLINARY HEARINGS (INMATES) (WITNESS TESTIMONY TAKEN OUTSIDE THE INMATE’S PRESENCE REQUIRED ANNULMENT AND EXPUNGEMENT)

IN THE FACE OF AN ALLEGATION OF CONFLICT OF INTEREST, SUPREME COURT PROPERLY ORDERED DEFENSE COUNSEL TO PROVIDE STATEMENTS FROM THE JOINTLY REPRESENTED DEFENDANTS CONSENTING TO THE REPRESENTATION.

The Third Department determined Supreme Court properly required defense counsel, who represented several defendants, to submit statements demonstrating the clients’ consent to joint representation (to address potential conflicts of interest):

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With respect to defense counsel’s potential conflict of interest, we first note that defendants failed to preserve any objection that plaintiff lacked standing to raise the issue or failed to file her cross motion in a timely manner. Nor did Supreme Court err in ordering defense counsel to obtain the written statements. “[A] lawyer shall not represent a client if a reasonable lawyer would conclude that . . . the representation will involve the lawyer in representing differing interests” … . Notwithstanding such a conflict, a lawyer may still represent a client if “(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing” … . All Supreme Court’s order effectively does is assure compliance with this rule … . Considering the differing roles of each defendant, we conclude that Supreme Court prudently directed defense counsel to provide the client statements. Bynum v Camp Bisco, LLC, 2017 NY Slip Op 05143, 3rd Dept 6-22-17

ATTORNEYS (CONFLICT OF INTEREST, IN THE FACE OF AN ALLEGATION OF CONFLICT OF INTEREST, SUPREME COURT PROPERLY ASKED DEFENSE COUNSEL FOR STATEMENTS FROM THE JOINTLY REPRESENTED DEFENDANTS CONSENTING TO THE REPRESENTATION)/CONFLICT OF INTEREST (ATTORNEYS, IN THE FACE OF AN ALLEGATION OF CONFLICT OF INTEREST, SUPREME COURT PROPERLY ASKED DEFENSE COUNSEL FOR STATEMENTS FROM THE JOINTLY REPRESENTED DEFENDANTS CONSENTING TO THE REPRESENTATION)

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HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT.

The Third Department determined hearsay evidence constituted substantial evidence and supported a finding that petitioner abused a resident of a facility operated by the Office of People with Developmental Disabilities (OPWDD). A statement from an eyewitness was the challenged hearsay:

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… [I]t is well established that, in an administrative hearing, hearsay is admissible and may support a finding of substantial evidence … Further, hearsay evidence “may, under appropriate circumstances, form the sole basis of an agency’s determination, unless the hearsay evidence is seriously controverted” … . Here, the corroborated description of the incident by the eyewitness was only controverted by petitioner’s denial that he punched the victim. Petitioner’s acknowledgment that he engaged in horseplay with the victim that morning, combined with his statements on two other occasions that he did not recall whether he punched the victim, presented credibility questions for the Justice Center to resolve … . Consequently, the Justice Center could view the corroborated description by the eyewitness as not seriously controverted and “sufficiently reliable” so as to constitute substantial evidence … . Matter of Cauthen v New York State Justice Ctr. for the Protection of People with Special Needs, 2017 NY Slip Op 05147, 3rd Dept 6-22-17

ADMINISTRATIVE LAW (EVIDENCE, HEARSAY, HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT)/EVIDENCE (ADMINISTRATIVE LAW, SUBSTANTIAL EVIDENCE, HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT)/HEARSAY (ADMINISTRATIVE LAW, HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT)

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PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED.

The Third Department, affirming Supreme Court, determined the medical malpractice action brought on behalf of a high school student who committed suicide was properly dismissed. The decision lays out in detail the actions of the defendants and the expert affidavits submitted to demonstrate the defendants did not deviate from an appropriate standard of care in assessing plaintiff’s decedent’s mental state or in releasing plaintiff’s decedent to his parents. The plaintiffs’ expert affidavit did not demonstrate any substantive deviation from appropriate care, or any expertise in emergency medicine. Shortly after release from defendants’ care, which related to drug abuse, not suicidal ideation, plaintiff’s decedent shot himself in the head:

The burden … shifted to plaintiffs to raise a triable issue of fact as to whether defendants departed from the accepted standard of care … . To that end, plaintiffs primarily relied on an affirmation of Igor Galynker, a psychiatrist, who opined that Duplan [the psychiatrist] departed from accepted practice in several ways, including by failing to personally evaluate decedent and failing to consider several factors that increased decedent’s risk for suicide. As to CMC [the emergency care provider], Galynker opined that it failed to establish procedures requiring Duplan to personally evaluate decedent and failed to create a “structured interview algorithm” for assessment of acute suicide risk, leading to serious errors on Beeby’s [the psychiatric nurse who interviewed plaintiff’s decedent] part. Yet, Galynker failed to provide any factual basis for his opinions … or point to any medical guidelines indicating that only a psychiatrist may conduct a mental health examination. Furthermore, Galynker’s assertion that Duplan had failed to consider several additional suicide risk factors is belied by Duplan’s testimony and the mental health evaluation, which reveal that Duplan was aware of and weighed such factors. Relatedly, Galynker never articulated how or why, if certain questions were asked or mnemonics/algorithms were used, material information would have been revealed that would have altered the medical decision rendered. Consequently, with regard to Duplan and CMC, Supreme Court properly found Galynker’s affirmation to be conclusory and lacking sufficient detail to raise a triable issue of fact … . With respect to Koch [the emergency medicine physician], Galynker opined that he deviated from accepted practice by, among other things, failing to discuss the case with Duplan and failing to consider the effects of decedent’s drug use. Notably, however, Galynker did not indicate that he had any training or expertise in the field of emergency medicine … . Therefore, plaintiffs’ medical malpractice and wrongful death causes of action were properly dismissed. Gallagher v Cayuga Med. Ctr. 2017 NY Slip Op 04941, 3rd Dept 6-15-17

NEGLIGENCE (PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE ANY EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/MEDICAL MALPRACTICE (SUICIDE, PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE ANY EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT OPINION, PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/EXPERT OPINION (MEDICAL MALPRACTICE,  PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/SUICIDE (MEDICAL MALPRACTICE, EXPERT OPINION, PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE ANY EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)

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OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD.

The Third Department determined claimant’s negligence suit against the state Office of Mental Retardation and Developmental Disabilities (OMRDD) was properly dismissed because the OMRDD’s oversight of private companies providing care to the developmentally disabled was a government function and there was no special relationship with the resident, claimant’s daughter. Therefore the state was immune from suti. Claimant alleged the resident was abused while in the care of Camary Statewide Services, a private, nonprofit corporation that was, at that time, certified by the OMRDD:

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OMRDD conducted annual or biannual reviews, which included a sampling of records and interviews of staff members and residents, to determine whether Camary continued to be eligible for an operating certificate to provide care and treatment to developmentally disabled individuals … . Where noncompliance was discovered, OMRDD could require private service providers to take corrective measures to address the deficiency or, where the noncompliance was severe, revoke, suspend or limit the service provider’s operating certificate … . In the event of noncompliance, OMRDD would provide guidance to the service provider, but it would not take affirmative steps to bring the provider into compliance with the applicable regulations. Moreover, OMRDD’s oversight over, and regulation of, Camary was plainly undertaken to further the general goal of protecting the health and safety of persons with developmental disabilities. Based on the foregoing, we conclude that the actions, or inactions, in question were governmental in nature … . * * *

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… [C]laimant argues that the requisite special relationship was formed by OMRDD’s violation of Mental Hygiene Law former § 13.07 (c) … , as well as the reporting rules in 14 NYCRR former part 624 … . As relevant here, Mental Hygiene Law former § 13.07 (c) …  charged OMRDD with ensuring that the care and treatment provided to persons with developmental disabilities were of high quality and that the personal and civil rights of persons receiving such care and treatment were protected. As for the reporting rules, OMRDD promulgated detailed regulations requiring that reportable incidents, which included instances in which a resident sustained an injury requiring more than first aid, be recorded and investigated by the service provider under a defined procedure, subject to review by OMRDD. Undoubtedly, these statutory and regulatory provisions were enacted for the benefit of persons with developmental disabilities, a class within which the resident certainly falls.

However, no private right of action is expressly created by the implementing statute and the relevant regulations and, contrary to claimant’s contentions, one may not be fairly implied. T.T. v State of New York, 2017 NY Slip Op 04940, 3rd Dept 6-15-17

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NEGLIGENCE (GOVERNMENTAL IMMUNITY, DEVELOPMENTALLY DISABLED, OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/IMMUNITY (OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (IMMUNITY, OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/MENTAL HYGIENE LAW (DEVELOPMENTALLY DISABLED, IMMUNITY,  OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/DEVELOPMENTALLY DISABLED (NEGLIGENCE, IMMUNITY,  OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)

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