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Colon v. City of New York

May 21, 2009


The opinion of the court was delivered by: Hon. Harold Baer, Jr., United States District Judge


This action arises out of allegations that Plaintiff Teofilo Colon ("Plaintiff" or "Colon") suffered an injury to his left thumb while he was a pretrial detainee at Rikers Island, and that he received improper medical care in response to that injury. Specifically, Colon brought this action alleging (1) deliberate indifference to serious medical needs in violation of the United States Constitution, pursuant to 42 U.S.C. § 1983;*fn1 (2) medical malpractice; (3) constitutional tort in violation of §§ 5, 6 and 12 of the New York State Constitution; (4) negligence; and (5) negligent hiring as to the City of New York ("City") and Prison Health Services, Inc. ("PHS") and its medical staff. Defendants*fn2 move for summary judgment on each of Plaintiff's claims.

For the reasons set forth below, Defendants' motion for summary judgment on Colon's deliberate indifference claim is granted, and the remaining state law claims are dismissed without prejudice for lack of supplemental jurisdiction.


Colon was incarcerated as a pretrial detainee in the custody of the New York City Department of Correction at Rikers from September 12, 2006 to October 15, 2007. Throughout his confinement at Rikers, Colon was provided medical and mental health treatment through the New York City Department of Health and Mental Hygiene ("DOHMH"), Division of Health Care Access and Improvement, Correctional Health Services ("CHS"). In 2007, PHS held the contract to provide administrative and managerial support for the contract under which medical services were provided to inmates at all New York City jails except for the Vernon C. Bain Center. The medical services at Rikers are provided under a contract with Prison Health Services Medical Services, P.C. (the "P.C."). For an inmate to receive specialized medical treatment not available at Rikers, such as Colon required, he must be sent to Bellevue Hospital for either admission or treatment at a specialty outpatient clinic.

Colon's claims all arise from allegedly improper medical treatment he received at Rikers and/or Bellevue Hospital after he injured his left thumb on February 19, 2007 during an altercation with another inmate. The incident occurred at approximately 9:40 p.m. on February 19; within hours, at approximately 1:10 a.m. on February 20, 2007, Plaintiff was seen at the AMKC Clinic by a nurse, who applied a cold compress to Plaintiff's thumb and referred him to a physician or physician's assistant for further evaluation. Plaintiff was seen by a physician's assistant at approximately 4:40 a.m. on February 20. The physician's assistant observed swelling and redness at the metacarpophalangeal joint on Plaintiff's left thumb and ordered a stat left hand x-ray and Motrin, and referred Plaintiff to Urgicare. The Urgicare physician asked Plaintiff questions about his injury; the doctor's notes indicate that Plaintiff described a history of injuries to his left hand "years ago." The physician observed swelling, redness and tenderness in Plaintiff's left hand, but with no deformity. Upon review of Plaintiff's x-ray, the physician described his injury as a "thumb base fracture." The report of the x-ray further indicated that Plaintiff had a "dorsally displaced transverse fracture of the base of the 1st metacarpal," and that the fracture was not dislocated. The physician applied a thumb spica splint to the injury and made an appointment for Plaintiff to see a hand specialist at the Bellevue Hand Clinic ("BHC"). By two days later, on February 22, Plaintiff had been scheduled for two separate appointments at the BHC, one onFebruary 27 and one onMarch 6.

Colon was transported from Rikers and appeared for his appointment at Bellevue on February 27 and his left thumb was x-rayed by Bellevue technicians. A BHC radiologist interpreted the x-ray as reflecting a "Rolando fracture" of the base of the left first metacarpal. At his March 6 appointment, Colon's thumb spica splint was changed, and he was scheduled to undergo hand surgery at the Bellevue Hand Service. The surgery would consist of a closed reduction percutaneous pinning ("CRPP") or open reduction internal fixation ("ORIF") of the left thumb. Plaintiff reported no pain issues during his March 6 appointment. The surgery was initially scheduled for March 13, 2007 and was to be performed by Defendant Sheel Sharma, M.D. ("Dr. Sharma"). The surgery ultimately was not performed on the scheduled day due to an emergency requiring the Bellevue Hand Surgery Service. After having been admitted to the hospital in preparation for the surgery, Colon remained at Bellevue until March 16, 2007. His medical chart indicates that he declined to remain at the BHC after the surgery could not be performed on either March 15 or March 16. When Plaintiff was discharged on March 16, his surgery was rescheduled to take place on March 22, 2007 and was to be performed by Defendant Steven K. Lee, M.D. ("Dr. Lee"). Dr. Sharma testified at his deposition that Plaintiff had a window of approximately six weeks for surgery before the fracture would heal.

Plaintiff was admitted once again to Bellevue on March 21, 2007 in preparation for his surgery scheduled for the next day; however, the surgery did not take place as scheduled because the fluoroscope -- a radiological imaging machine used for visualizing bones during the procedure -- had malfunctioned and required service. Plaintiff alleges that the fluoroscope had been malfunctioning for approximately a year and that it was in obvious need of repair or replacement. The fluoroscope was repaired on March 22, 2007. Plaintiff was discharged from the BHC on March 23, 2007. No specific date was set for the surgery to take place, but his Discharge Instruction Sheet indicated that he was to return to the BHC in two weeks.

Pursuant to this instruction, Plaintiff was scheduled for appointments at the BHC for April 3 and April 10, but these appointments were cancelled. It is unclear from the record why the April 3 appointment was cancelled; the April 10 appointment was cancelled because Rikers clinicians were informed the BHC was closed on that day. Attempts were made in the interim to reschedule Plaintiff's appointment, and the appointment ultimately was scheduled for April 17, 2007. In the meantime, on April 12, 2007, non-party Dale Wilker, Esq. of the Prisoners' Rights Project emailed a complaint on Plaintiff's behalf stating that Plaintiff complained that "PHS has not sent him back [to the BHC] for surgery which is overdue." Upon receiving Mr. Wilker's email, Defendant Trevor Parks, M.D. ("Dr. Parks") immediately alerted Defendant Jean Richard ("Dr. Richard") so that Dr. Richard could investigate.*fn4 Dr. Richard then arranged for Plaintiff to be seen in the AMKC Clinic. Plaintiff was seen that same day by non-party Dr. Sein Than, who examined Plaintiff and wrote a consultation request for follow-up at the BHC. The appointment at the BHC was scheduled for May 1, 2007. As a result, Plaintiff had two scheduled appointments at the BHC, one for April 17 and one for May 1.

On April 17, Plaintiff attended his appointment at the BHC and was seen by Defendant Michael Hall, M.D. ("Dr. Hall"), who examined Plaintiff's thumb under a fluoroscope after removing the thumb spica splint. Dr. Hall observed that there was no tenderness to palpation or instability at the thumb, and it was neurovascularly intact. There was also no motion of the fracture when pressure was applied. Plaintiff was instructed to perform range of motion exercises and another thumb spica splint was applied. The note written at or after the examination indicated that Plaintiff "will call back, no appt for now." Dr. Hall testified that his examination of Plaintiff's thumb on April 17 indicated that the fracture had healed on its own. Thus, no additional appointment or surgery was scheduled.

On May 29, 2007, Plaintiff requested follow-up at the BHC because of pain in his left thumb. He was seen at Rikers by non-party Dr. Nason on June 8, 2007, and she wrote him a consultation request to be seen at the BHC. The BHC appointment was scheduled for June 26, 2007. On June 22, 2007, in preparation for his June 26 appointment, Plaintiff's left thumb was x-rayed at the BHC. The x-ray showed a healed fracture and preserved joint spaces. On June 25, apparently unaware that Plaintiff had a BHC appointment scheduled for the next day, Mr. Wilker sent another email on Plaintiff's behalf inquiring why Plaintiff still had not undergone surgery. Mr. Wilker's email assumed that Plaintiff's thumb had not been properly reset and casted, but as noted, Plaintiff's April 17 examination at the BHC revealed that the fracture was aligned.

The next day, on June 26, Plaintiff appeared as scheduled for his BHC appointment and was examined by Dr. Lee, whose notes indicated that Plaintiff had lost the normal contour in his thumb knuckle joint (or MCP), but Plaintiff felt no pain in the joint. As Dr. Lee testified at his deposition, the MCP is not the area that Plaintiff injured in February 2007; rather, Plaintiff had injured the base of his left thumb, where Dr. Lee's note indicated a lack of abnormality as of June 26. Dr. Lee scheduled a follow-up appointment within two weeks, on July 10, to discuss Plaintiff's surgical options and treatment plan. Dr. Lee testified that his review of the June 22, 2007 x-ray indicated that there was no need for immediate action for treatment of Plaintiff's left thumb. In the interim before his July 10 appointment at the BHC, Plaintiff was again seen by Dr. Nason on Rikers on July 6, 2007.

When Plaintiff returned to the BHC on July 10, the examining doctor again observed a loss of contour of the left thumb knuckle, and noted that Plaintiff continued to experience some loss of mobility and pain along the dorsal surface of his thumb. The doctor's notes indicate that Plaintiff was instructed to return in two weeks for possible surgery to fuse the joint, but that it was also explained to Plaintiff that the surgery could decrease his range of motion. Plaintiff returned to the BHC on July 16 and was seen by Dr. Lee, who ordered a CT scan to assess whether the February 2007 fracture had an articular component that required operative management. The CT scan was performed on July 20 and indicated that plaintiff had a "healed impacted fracture of the proximal metaphysis of the first metacarpal with slight lateral subluxation at the first carpometacarpal joint with no evidence of nonunion or complication." As to the loss of MCP, the CT scan revealed "degenerative changes in the MCP joint evidenced by subchondral cysts and sclerosis" and for the first time, the joint appeared to be "medially subluxed (or shifted out of position)." An MRI was recommended to assess for radial collateral ligament injury. On July 31, 2007, at the BHC, Plaintiff was offered an MRI to evaluate whether he had injury to his ligaments as a result of the knuckle having shifted out of place, but Plaintiff refused the MRI and instead agreed to return to the BHC on an as-needed basis to manage any pain. Plaintiff never requested any follow-up at the BHC after July 31, 2007.

On October 15, 2007, Plaintiff was discharged from Rikers into the custody of the New York State Department of Correctional Services ("DOCS"). He complained of pain in his left thumb for the first time while in DOCS custody on May 13, 2008, over nine months after his last appointment at the BHC. He underwent an x-ray on June 24, 2008, which indicated a healed fracture at the base of his left thumb, and mild degenerative change at the IP joint of the thumb. The x-ray report indicated that "no action is required at this time." The DOCS chart does not reflect that any medical personnel advised Plaintiff that his February ...

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