6, 7, 8 Filed Papers: Claim, Answer, Decision and Order Motion Nos. M-57242
Upon the foregoing papers, this motion is granted. Claimant has sought in this
motion all medical records related to his left elbow, left wrist and left hand
"[F]rom August 1995, 1996, 1997," essentially all the medical records related to
the surgery thereon by Dr. John F. Mosher on May 13, 1997 until December
The Defendant has advised the Court that it will provide, prior to the trial
herein, all the medical records which Claimant has sought that are in its
possession. It opposes production of the medical bills on the ground that such
are irrelevant and unnecessary to determine liability, and in any event,
Claimant did not pay for any of his medical care.
Since all requested medical records are being provided to Claimant, that part
of the motion is denied as unnecessary. I decline to order production of any
medical bills at this time, unless Claimant, at trial, can demonstrate the
pertinence of such documents.
Claimant also seeks the appearance of Dr. John F. Mosher and his assistant, and
Dr. "Shaw" at his trial. He wishes to question Dr. Mosher about the "surgical"
(sic) under oath. The Defendant, not surprisingly, opposes the production of
either doctor on numerous grounds. First, it avers that neither doctor is an
employee of the Department of Correctional Services. Second, neither doctor has
been retained as an expert by the Claimant, although the Court's file does not
reveal Defendant's demand for disclosure of expert witnesses.
It appears that Dr. Mosher performed a surgical procedure on Claimant that is
the basis of this claim. Apparently Dr. "Shaw" performed an "E.R.G. test" on
Claimant's left elbow, left wrist and left hand and Claimant would ask her to
explain to the Court the tests in question. Defendant suggests that the medical
records herein will speak for themselves and provide all the information which
may be obtained from either witness.
In his reply, Claimant now also seeks to offer the testimony of Mr. Jose
Flores, his supervisor at the time of the accident, to discuss Claimant's work
assignment at that time. However, the cause of action here sounds in medical
malpractice, and not in negligence, thus Mr. Flores' testimony appears
irrelevant. I similarly decline to direct the appearance of Inmate Larry
Fullere, or any other unnamed inmates, as all such testimony is irrelevant to
the issue of liability in a medical malpractice claim. Furthermore, Claimant
failed to raise these names in his original motion, and by doing so only in his
reply, deprives the Defendant of the opportunity to comment thereupon.
In his reply, Claimant names the assistant who saw him on May 13, 1997, Dr.
Arthur Rideout, M.D., and requests his testimony, as well as modifying the name
of Dr. "Shaw", who now appears to be Dr. Deborah Young Bradshaw, M.D., who
allegedly performed some E. R. G. testis (sic) on Claimant's left wrist.
Claimant fails to sufficiently articulate the relevance and materiality of Dr.
Bradshaw's or Dr. Rideout's testimony with respect to the putative liability of
the Defendant for medical malpractice allegedly performed by Dr. Mosher. Thus,
I decline to direct the appearance of either Dr. Bradshaw or Dr. Rideout at this
time, reserving the possibility that their testimony might be relevant on the
issue of damages, should Claimant prevail otherwise.
On the question of Dr. Mosher's testimony, I am well aware of the Court of
Appeals decision in Morell v Balasubramanian, 70 NY2d 297, where it is
clear that a doctor who is an employee of the State of New York may be sued
personally in Supreme Court. Morell also stands for the proposition that
the State "could be held secondarily liable for the tortious acts [of such
doctor] under respondeat superior" (id at 301).
That reasoning must also be balanced by the Third Department's decision in
Rivers v State of New York, 159 AD2d 788, appeal denied 76 NY2d 701, where
that doctor was found to have committed negligence on an inmate, but where the
doctor was found to have been an independent contractor and there was no
negligence established on the part of the State. In the instant claim the facts
are not directly on point and consistent with Rivers, id.
First, while it is alleged that Dr. Mosher is not an employee of the Department
of Correctional Services, he is alleged to be at the Department of Orthopedic
Surgery, SUNY Health Science Center in Syracuse. Whether Dr. Mosher is an
employee of the State of New York or an independent contractor is a question of
fact that must be resolved (see Soltis v State of New York, 172 AD2d 919,
remitted 188 AD2d 201). I am of course troubled by the vagueness of the
allegations in the claim, but in my decision in Motion No. M-57241, filed over
two years ago on June 1, 1998, I observed that Claimant's opposition to the
motion to dismiss for failure to state a cause of action "articulate[d] in more
detail the nature of his claim, albeit without the clarity one would generally
receive from an attorney." I declined, at that point, to grant the motion,
Claimant should be given the opportunity to respond to a demand for a bill of
particulars after which the Defendant might consider further motion
No such motion was made.
Similarly, no motion was made in furtherance of the Defendant's Third
Affirmative Defense, which asserts that the Court of Claims does not have
jurisdiction over the named defendants Department of Correctional Services and
Dr. John F. Mosher, M.D. While this may be true, it is not clear that the State
of New York may not be secondarily liable under respondent superior
(Morell, supra, at 301).
The point of this discourse is to reach the Claimant's application to have Dr.
John F. Mosher, M.D., ostensibly an employee of the Defendant State of New York,
albeit not at Auburn, produced at trial. Under the specific, perhaps unique,
circumstances extant, I find that Claimant is entitled to the issuance of a
Since Claimant is not an attorney, he cannot issue subpoenas on his own, and I
will issue the subpoena herein (CPLR 2303). The subpoena will be forwarded
under separate cover to the Claimant, with a copy to the Defendant. Claimant
shall serve Dr. Mosher by certified mail, return receipt requested and at the
address he has utilized to serve the claim and the instant motion papers upon
Dr. Mosher. CPLR 2303 says that subpoenas shall be served in the same manner as
a summons. However, in the Court of Claims, the functional equivalent of the
summons and complaint, to wit, the claim, must be served personally or by
certified mail, return receipt requested (Court of Claims Act §11[a]) in
order to obtain personal jurisdiction over the State. It is inherently obvious
that an inmate is limited in his ability to accomplish personal service, and
since the recipient herein appears to be an employee of the Defendant State of
New York, and since it appears he has been served with the claim by certified
mail, return receipt requested, I will direct service of such subpoena by the
When Claimant serves Dr. Mosher with said subpoena, he will be required to pay
the statutory witness attendance fee of $15.00 and travel expenses for the round
trip between Syracuse and Auburn Correctional Facility, which I am advised is
some 27 miles, for round trip mileage of 54 miles times $.23 per mile (CPLR
8001) or $12.42, for a total of $27.42, by check payable to Dr. Mosher. Service
must be accomplished no later than October 6, 2000.
Trial of this matter is adjourned to November 2, 2000 at 8:30 a.m. The Clerk
is directed to serve this order upon the parties.