New York State Court of Claims

New York State Court of Claims

YOUNGS v. THE STATE OF NEW YORK, #2000-004-014, Claim No. 93949


Synopsis



Case Information

UID:
2000-004-014
Claimant(s):
MICHAEL J. YOUNGS, of HCR Box # 286, Cold Brook, New York 13324
Claimant short name:
YOUNGS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93949
Motion number(s):

Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
Philip D. O'Donnell, Esq.
Defendant's attorney:
HON. ELIOT SPTIZER
ATTORNEY GENERAL
BY: Earl F. GialanellaAssistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 9, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
In his filed Claim, the Claimant alleges, in pertinent part:
2.) That this claim is for negligence of the State of New York, in the supervision of inmates at ELMIRA CORRECTIONAL FACILITY, in that on the 8th day of February, 1996, at about 4:30 P.M., claimant was set upon, beaten and assaulted by other inmates, and was treated in house in an incompetent fashion, in that a lay person, not medical personnel, undertook to treat claimant by application of a simple "Band-aid", whereas stitches were indicated, and claimant now has a serious facial disfigurement.

***

6.) That claimant has not been treated by any non-prison medical people.

In the State's Demand for Verified Bill of Particulars, we find:
26. Specify in detail each and every alleged act of negligence for which claimant alleges that the defendant is liable to claimant.

In Claimant's Bill of Particulars, we find:
26. That claimant contends that the negligence, resulting in claimant's injury was:

A. Lack of supervision

B. Failure to segregate claimant's assailant from claimant, the assailant known to have ficious [sic] propensities.

C. Failure to provide claimant adequate professional medical care.
For reasons that will become clear from the following, Claimant did not pursue his claim
for injuries resulting from negligent lack of supervision or negligent failure to segregate his assailant.

Claimant, age 27 at the time of the trial, has spent a good part of his adult life incarcerated, both before and subsequent to February 8, 1996, the date that he was assaulted by other inmates at the Elmira Correctional Facility (ECF). Claimant testified that he had been at the ECF for "a few weeks"[1]
prior to the assault, having been transferred to ECF from Mid-State Correctional Facility. He opined that he was transferred because he had obtained "unauthorized white supremacy material" through the mail. Claimant testified that he had originally been incarcerated in April of 1990 and that he had been receiving white supremacy mailings since 1998. At the trial, Claimant testified that he does not "care for coloreds". Asked, "coloreds meaning blacks and Hispanics?", he responded, "Right, exactly".

Claimant described the assault upon him as follows,
I was walking along talking with another inmate. Somebody came up behind me and pushed my head sideways and sliced me with a razor on my face and I seen all the blood and my face was open and the next thing I know, I got a Spanish guy in front of me taking a swing at me and I'm fighting with about 14 or 13 Spanish guys. It was going on for a good five minutes or so until the COs got there and broke it up.

Claimant was taken to the infirmary at the ECF. Asked "Whom did you see?" he responded, "There was a nurse there and there was an inmate nurse". Asked if he was examined by either of them he responded, "The nurse looked at me and then she never laid a hand on me. I can't even recall if it was a male or a female....The inmate was the one who did all the stuff on my face". Asked what that was, Claimant responded, "He put peroxide on my face and wiped it down. He dumped it in the wound and then wiped it all off and cleaned it up and then he put steri strips on". He described the inmate who placed the steri strips on the laceration as a "black inmate". Claimant recalled that he "really didn't want him touching me, but I had no choice", adding he told the nurse this and the nurse said, "Well, he is helping me. You have no choice".


Claimant testified that, after he left the infirmary, he was placed in a different cell block, "in keeplock" pending a hearing arising from the altercation which resulted in his injury. He testified that he remained in the new cell block for some 14 or 15 days "until my keeplock time was up from the fight". According to Claimant, the "steri strips" that were placed on his right cheek "fell off". Asked if, during this period of time, he talked to any correction officers about seeing a physician, Claimant responded, "Numerous times. Every day I asked". Asked if, to make such a request, he was required "to complete some sort of a slip or paper writing" Claimant responded, "request slips, yes".[2]
He recalled that, during this period of time, the slash on his face looked "red and raw". Asked, if he could "manipulate your tongue and tell the extent of the laceration" Claimant responded, "At one point in time my whole tongue came right through the side of my face".

Asked on cross-examination if he filled out any "sick form calls" [
sic] during the period of time from the date of the assault until the time he was released from the ECF and if so how many he responded, "At least three a day", which he stated he gave to correction officers. Asked why he received no response, he testified that one of the correction officers told him that he was a "scumbag" and that "you ain't getting nothing". Claimant testified that he wrote a letter to the Superintendent of the ECF complaining about his lack of treatment about two weeks after the assault, but that he received no response.

Claimant was released on parole from the ECF in April of 1996, sometime prior to April 27, 1996.[3]


Claimant was again incarcerated for a parole violation in September of 1996 and he recalled that he was in a local jail for approximately five to six months. He testified that he complained to medical personnel at the local jail and was seen by a nurse. He did not, however, see a physician during the time he was not incarcerated from sometime prior to April 27, 1996 until he was again taken into custody in September of 1996. Asked about the interior wall of his right cheek, Claimant testified, "I can feel it with my tongue and I have a line that comes across on the inside of my mouth, and if I pull my cheek apart and look in the mirror, you can see there is a white scar that runs on the inside of my mouth". Asked if he noticed a difference in sensation between the right and left side of his face "insofar as saliva is concerned" Claimant responded, "I always got a dry mouth. I have to switch saliva from this side of my mouth to the other side."


After his approximately six month stay in the local jail, Claimant was returned to State custody. He was asked, "Is it also true that when you went back into State prison on or about March of 1997 through March of 2000, you made no sick call requests concerning your injuries and the treatment that you received back on February 8, 1996"
and he responded, "Right". Asked if he had been in four fights "since March of 1997" he responded, "On or about". Asked what he meant, he responded, "I can't recall how many fights I was in" .

At the end of Claimant's proof, Claimant's able counsel informed the Court that although Claimant had seen a physician since the Claim was filed, the physician had refused to testify, even on videotape. The State moved to dismiss the Claim and the Court reserved on the motion.


The State called one witness, Cornelis Wellim DeBruin, the Registered Nurse who saw the Claimant in the ECF infirmary on February 8, 1996, shortly after the altercation. DeBruin is a male. On the date of the altercation at 4:45 p.m. (i.e. 16:45) DeBruin recorded the following in Claimant's Ambulatory Health Record, "c/o Rt elbow pain" and "Laceration noted Rt face aprox. [
sic] 4-5inches not deep surface lac....all areas cleansed [with] H2O2 laceration closed [with] steri Strips. No clips applied. Bactracin [sic] oint given." (Cl. Ex. 3) During his testimony, DeBruin explained that
steri strips are plastic and nylon strips that are used to close a wound, tincture benzoin is placed on both sides of the wound. Tincture benzoin toughens the skin up and makes an adhesive when it starts to dry, it gets really sticky and then you place the steri strip on either the lower or the upper half of the laceration, tighten it to bring the two edges together and press down on the lower or upper end of the laceration to close the wound.

DeBruin also completed a report at the time, wherein he recorded, "Complains of pain Rt elbow active bleeding Rt face. Laceration Rt face aprox [sic] 4-5 in in length cleansed with Hydrogen Peroxide closed with steri Strips Rt elbow abrasions X 2 noted. areas [sic] cleansed. Large ecomotic [sic] area noted inner Rt elbow. Contusion noted Rt forehead". (Cl. Exs. 4 and 5) DeBruin was asked what injuries to Claimant he observed, based on his review of Claimant's Exhibits 3 and 5, and he responded, "I documented that he had a laceration on his right face about four to five inches and it was not a deep surface laceration. The inmate was complaining of right elbow pain. There were two abrasions on the right elbow with an ecchymotic area on the inner side of the elbow". Asked what he meant when he stated that the Claimant's facial injury was not a "deep surface laceration" DeBruin responded, "Well, it's a laceration that...is not deep. It's roughly anywhere from 32nd to 16th of an inch deep that does not spread or gape open or anything else, which a larger laceration, deeper laceration would do". Asked what he meant by "gaping or gape" DeBruin stated, "Well, at the deepest portion of the laceration it would spread, the edges of the laceration would spread apart", noting that, had that been the case, "it would have been documented". Asked why he decided to employ the method of treatment that he used, DeBruin testified "Well, by the looks of the - it's not - it's a surface laceration and not deep surface laceration. We are prone to go with the most...noninvasive way of treating to minimize scarring and everything else....The edges were approximated and they would be closed with steri strips". DeBruin was asked if Claimant was given any "follow up instructions" and he responded that Claimant "was informed that the steri strips will come off in time as the wound heals. Afterwards, when the steri strips are all off, he is to use the bacitracin on the wound". DeBruin testified that if he concluded, in a given case, that sutures were required he would clean the wound and then call a physician to apply sutures, since he would not apply sutures himself. DeBruin was asked about Claimant's testimony that a black inmate actually treated him in the infirmary. According to DeBruin that testimony was "false. I do the patient care there....It's illegal for an inmate to take care of another inmate". DeBruin was asked to comment on Claimant's testimony that Claimant told him or the inmate assistant that his tongue was coming through his cheek, i.e., "If that is true...could you tell the Court what your course of action would have been in treating him" and he responded, "It would have basically been the same as if I was going to call the doctor for suturing. I would clean the wound, make sure it stayed moist while I went to make a telephone call to have the doctor come in". DeBruin testified that, had Claimant complained that his tongue came through his cheek, he would have recorded that fact in Claimant's Ambulatory Health Record.

On cross-examination, DeBruin was asked if Claimant was "bleeding extensively" and he responded that he was not. He was asked if he examined the "interior" of the Claimant's mouth and he responded that he had not. He was then asked "if scar tissue has developed on the interior wall of the mouth, would that be an indication that the laceration passed through the entire wall?" and he responded, "I'm not sure. I'm not qualified to answer that question". DeBruin was then asked, "If Mr. Youngs stood up and showed you the inside of his mouth could you tell if it's scar tissue?" and DeBruin testified that he could. He looked in Claimant's mouth at the trial. He was then asked by Claimant's counsel, "Do you see scar tissue there?" and he responded, "I see a white line there, yeah".


The Court also observed Claimant's facial scar and the interior of Claimant's mouth at the trial. There is a scar on Claimant's right cheek that appeared to be about one inch long, which did not appear to extend above the surface of Claimant's face. The edges of the scar also appeared completely closed. That is, there was no gap up between the edges. The Court also looked inside of the Claimant mouth and there did appear to be a short white narrow line on the interior of the Claimant's right cheek, aligned with the exterior scar.


Claimant's Exhibits 12 and 13 are photographs of the Claimant taken at 4:35 p.m. on the date of the incident. Exhibit 12 is a frontal view and Exhibit 13 is a view of the right side of Claimant's face. There are no steri strips visible on Claimant's face and the Court does not know whether the Claimant had received any treatment, prior to the time that the photographs were taken. The cut on Claimant's right cheek, as shown in Claimant's Exhibit 13 is not bleeding, although there is some blood on his face in the immediate area of the cut. It also appears that the cut, which runs from a point immediately in front of Claimant's right ear to the center of his right cheek is deeper on the cheek.


From the proof presented, it appears to the Court that the cut on Claimant's right cheek was sufficiently deep at the end of the cut on the cheek, that it penetrated the facial tissue, thereby opening a small slit on the interior wall of Claimant's right cheek. The Court finds that Claimant did not stick his tongue through that opening, that he did not complain about that opening and that DeBruin was unaware that it was there. Be that as it may, it appears clear to the Court that a careful examination of the exterior of Claimant's cheek by DeBruin at the time would have revealed that the laceration was not simply a surface laceration at the point where it penetrated to the interior of the cheek, but was, instead, deep. From DeBruin's testimony, therefore, it is reasonable to conclude that he should have discovered the depth of the laceration at that point and called a physician. He did neither. The Court finds that he should have done both and that his failure to do so was ordinary negligence. Be that as it may, that negligence is negligence in the air, so to speak, since there is absolutely no proof that a physician, having been so summoned, would have treated the Claimant's facial injury in any way other than it was treated, nor any proof that the ultimate result would be any different, were the laceration treated in some other way, such as the application of sutures. Stated otherwise, since this is clearly a medical malpractice claim, at least in terms of assessing the result of treatment applied vis-a-vis the result if treatment had been different, it must be dismissed because, from the proof presented, the Court has no idea whether any different form of treatment would have produced a better result. As noted (
supra, pp 8-9) the existing scar on Claimant's cheek and the white line which appears to be scar tissue on the interior of Claimant's right cheek are both modest in length and the exterior scar is not particularly disfiguring.[4] For the Court to conclude that the result would have been better, both objectively (e.g., appearance) and subjectively (e.g., saliva dysfunction), it would necessarily have to have expert input on the subject.

In sum, the State's motion to dismiss made at the end of Claimant's proof must be granted, since there was no expert testimony that the medical treatment that Claimant received was the proximate cause of any injury. (
cf., Duffen v State of New York, 245 AD2d 653)
In light of the foregoing, it is

ORDERED that Claim No. 93949 is DISMISSED.

ENTER JUDGMENT.

November 9, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims




[1]
Unless otherwise indicated, all quotations are from the Court's trial notes or from the trial electronic recording cassettes.
[2]
Claimant's Exhibit 7 is a "REQUEST FOR INTERVIEW OR INFORMATION" form which Claimant agreed was a "sample" of the forms that he submitted. He did not retain any copies of the numerous requests that he testified that he made, nor a copy of the letter to the Superintendent.
[3]
He signed the Verified Claim herein in Herkimer County on April 27, 1996.
[4]
Photographs of the exterior scar, one taken in June 1996 (Cl. Ex. 8) and one taken in August 1996 (Cl. Ex. 9), confirm this finding.