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Ortiz v. City of New York

United States District Court, S.D. New York

November 21, 2017

HECTOR GARCIA ORTIZ, Plaintiff,
v.
THE CITY OF NEW YORK, POLICE OFFICER EDWIN VAZQUEZ, AND POLICE OFFICER STEPHANIE HANNA, Defendants.

         APPEARANCES

          For the plaintiff: Cory T. Lee C. T. Lee & Associates, Ameer N. Benno Benno & Associates, P.C.

          For the defendants: Melanie Speight The City of New York Law Department

          OPINION AND ORDER

          DENISE COTE United States District Judge

         The parties seek guidance in advance of this 42 U.S.C. § 1983 trial on the extent to which medical records reflecting the plaintiff's hospitalization for intoxication will be admissible. It is undisputed that on June 1, 2014 -- the date of the incident at issue -- the defendant police officers had the plaintiff taken by ambulance to a hospital and that the hospital recorded that the plaintiff was intoxicated, combative, and violent. The plaintiff asserts that he was not incapacitated by alcohol consumption on that day, and that the police had wrongfully assaulted and seized him. The defendants assert that the plaintiff was intoxicated and combative, and deny that they assaulted him.

         The defendants have submitted the plaintiff's medical records for the date of the incident and two follow-up visits. They have also submitted medical records for one earlier date and three later dates which reflect treatment of the plaintiff for intoxication. After a description of the medical records, the parties' arguments regarding the admissibility of the records are addressed.

         THE MEDICAL RECORDS

         I. Records Predating the June 1, 2014 Incident

         There are records reflecting that the plaintiff received treatment in a hospital on two occasions before June 1, 2014. Of those two dates, the parties have only submitted detailed records for one visit.

         December 14, 2013

         The June 1, 2014 medical records indicate that the patient was “last seen” on December 14, 2013, but the June 1 records contain no information with respect to the purpose of the December 2013 visit. There are no separate records for treatment on December 14, 2013.

         May 3, 2014

         The plaintiff was transported by ambulance from an apartment at 247 West 122th Street to the Long Island Jewish Medical Center. According to a New York City Fire Department (“NYFD”) Emergency Medical Technicians (“EMTs”) Prehospital Care Report Summary, the ambulance was dispatched after a 911 call by Ortiz's mother at 10:55 p.m. According to the telephone log records associated with this emergency call, Ortiz's mother specifically asked for an ambulance and the police to come to the scene at least in part because he was threatening to hit her.

         The ambulance arrived on the scene at 11:03 p.m. Under the clinical notes of the Summary, the “Dispatch Reason” listed is “DRUG - Hx Drug or Alchol Abuse, ” and the “Chief Complaint” is “etoh abuse.” The summary notes that the “Provider Impression” is that there exists “No Medical Problem” and the “Mechanism of Injuty” is “Alcohol Intox.” The detailed notes under the “Narrative History” indicate that the police department was also on the scene and had to help escort Ortiz to the ambulance:

UPON ARRIVAL MALE PT FOUND AMBULATORY A&O FAMILY C/O ETOH ABUSE. FAMILY STATES PT IS VIOLENT AND HAS BEEN DRINKING. PT WOULD NOT GO WITH US. BLS AWAITED PD FOR ESCORT. PT WAS FIGHTING WITH PD AND AS WALKING DOWN STAIRS PT KEPT HITTING HEAD AGAINST WALLS. PT WAS TRANSPORTERD TO HOSP 07 WITH PD ESCORT HANDCUFFED.

         The summary also notes that Ortiz had a laceration on his right eyebrow and his right elbow. The EMTs “controlled” bleeding of both injuries.

         According to the telephone log record, the dispatcher noted that, after the ambulance arrived, Ortiz's mother called 911 again, stating “THAT SHE IS STILL WAITING FOR PD -- [STATES]THAT EMS WONT REMOVE THE PATIENT BECAUSE THE AIDED IS TOO AGGRESSIVE AND PD IS NEEDED.”

         II. Records Related to the June 1, 2014 Incident

         There are three sets of records related to the June 1, 2014 incident: records of the hospitalization on June 1 and 2, and two follow-up treatments in July and August of 2014.

         June 1 and 2, 2014

         The medical records from St. Luke's Hospital detail the plaintiff's physical state when he was brought from 60 St. Nicholas Avenue to St. Luke's Hospital by NYFD EMTs at 8:14 p.m.[1] The records include a “Prehospital Care Report Summary” completed by the FDNY EMTs on June 1. That summary includes:

48Y/O MALE FOUND LYING DOWN IN THE GROUND WITH PD HANDCUFFED. AS PER PT FOUND IN FRONT OF THE LIQUOR STORE AT ST NICHOLAS. PT IS INTOXICATED, HE NEEDS TO GO TO HOSP FOR DETOX. PT HAS ODOR OF INTOXICATING SUBSTANCE BREATHE [sic]. PT WAS UNSTEADY GAIT, COMBATIVE, BELLIGERENT, UNABLE TO OBTAIN THE VITAL SIGNS. NOTED AN ABRASION, LEFT EYEBROW-BLEEDING. NAUSEOUS AND VOMITING. PT DENIED ANY OTHER OBVIOUS INJURY. PT TXP TO HSP 20 W/O INCIDENT W/ PD.

         The “initial triage” records from the hospital recorded at 10:23 p.m. indicate that the “complaint category” is “Toxic - Poison/Substance Abuse” and the “Chief Complaint” is “Intox.” The triage notes also contain information given to the registered nurse on duty by the EMTs: “as per EMS, patient admitted to drinking alcohol, yelling and aggressive, hitting well [sic]. came in handcuffed for safety, abrasion to left eyebrow, placed in trauma room.”

         In a section regarding the medications given to the patient, notes under three of the administered medicines state that the patient was “combative, violent.” Under the fourth and final medication administered, a note signals that the patient was “sleeping, sedated.” The first two medications -- Haldol and Benadryl -- were administered at 10:39 p.m.; the third Ativan -- at 10:40 p.m.; and fourth -- Tetanus / Diphtheria / Pertussis (a vaccine)-- at 11:23 p.m.

         The hospital records note that the “mechanism of injury” of the patient was “Alcohol Intox, ” and the provider's initial impression of the patient was that there was “No Medical Problem.” The relevant “Complaint Code” for the patient was “Toxic - Poison / Substance Abuse, ” and the “Barriers to Education” are the patient's “emotional state.” Notes taken by a registered nurse at 10:56 p.m. regarding a “basic assessment” of the patient include that the patient “displays an unsteady gait, [is] combative . . . arrived handcuffed by NYPD . . . abrasion to left eybrown [sic], no active bleeding . . . [patient] reports drinking heavily today.” The notes further state that the patient was “sedated for safety” and was “placed on left side” for the purposes of “maintaining airway.” Later notes by a doctor who assessed Ortiz state that Ortiz was “acutely agitated, curs[ed], has been drinking, required sedation.”

         Ortiz spent the night at the hospital. He was discharged shortly after noon on June 2. The patient's primary diagnosis is listed at 12:24 p.m. on June 2 as a fracture of the “tibial plateau.” Under that diagnosis, the “external cause of injury” is listed as “Fall, Acccidental NOS.”[2] His “additional diagnoses” include “alcohol abuse” and “alcohol intoxication.” In discharge notes by the same doctor from 12:25 p.m., the patient he was instructed “not to put any weight on [his] left leg.” A cast had been placed on Ortiz's left leg, which his is instructed to keep on and dry. With the cast on, he will have to use “crutches to get around.” The discharge notes also explain that an “xray did not show any broken bones in [Ortiz's] knee” and earlier notes by the attending radiologist, published at 10:42 a.m., “rule[d] out tibial plateau fracture.”[3]

         The patient left the hospital at 12:39 p.m. on June 2 after he was instructed on the use of crutches. The records indicate that he left the hospital with no residual pain (“Pain Scale: 0/10”) and left by way of bus.

         The patient's discharge instructions, from three different attending physicians throughout this time at the hospital, note that Ortiz was referred to the Addiction Institute at Roosevelt Hospital. Each of his discharge notes explain that the referral is “urgent.” No records of any visit to the Addiction Institute have been provided. The June 1 and 2 records note in several places that the patient was last seen at that hospital on December 14, 2013, with no other information about that visit.

         July 17, 2014

         The medical records from July 17, 2014 concern a follow-up visit relating to injuries sustained on the evening of June 1.[4]The patient is requesting a “follow up” and “cast removal.” A doctor's recommended “care plan” from this visit notes that the patient “will require 2 more weeks of healing with cast, recommend follow up in Ortho clinic.” The patient is referred for a “rapid follow up” with the Orthopedics clinic.

         August 7, 2014

         These records are from Ortiz's follow up visit to the Orthopedics clinic. The notes indicate that Ortiz described his injury as resulting from an “assault” by “police with a night stick” and that the injury “was at end of May or beginning of June.” The results of an x-ray indicate that the patient has a “healing medial tibial plateau fracture.” The patient's leg cast was removed. The doctor's final assessment is of a “closed fracture of upper end of tibia” and calls ...


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