Claimant contends that he sustained severe impairment of the vision of his
left eye as a result of culpable conduct of defendant that occurred in July and
while he was incarcerated at Great Meadow Correctional Facility, Washington
County. Claimant attributes his visual problem to a series of acts and
omissions by defendant. First, he alleges that a correction officer was
clowning around with him on July 13, 1992 and that the officer snapped him in
the left eye with a large elastic band, causing him to sustain bleeding inside
his left eye. Next, claimant complains that, after receiving treatment from an
ophthalmologist outside the prison for his left eye, he was prematurely ordered
to return to work at Great Meadow lifting heavy objects in contravention of the
ophthalmologist's orders. Lastly, claimant asserts that his repeated requests
for treatment because he was losing his field of vision were ignored by a
facility doctor for a week and that the delay in treatment significantly
aggravated the extent of the permanent problems with his eye. Defendant
adamantly contests virtually all aspects of the factual foundation upon which
claimant's case rests.
On July 13, 1992, claimant was housed in cell three on one gallery of C block
at Great Meadow. By approximately 6:30 p.m., most of the other inmates on the
gallery had left the area for recreation. Claimant remained in his cell because
he was being held on keeplock for a disciplinary infraction. Inmate Albert
Bell, who was housed next to claimant in cell one, also remained on the gallery.
Claimant testified that Correction Officer John L. Sargent came over to his cell
and started "ragging"
on him by hitting his nightstick on the cell and yelling. Claimant stated that
both he and Sargent were laughing and playing. He related that Sargent would
engage in mischievous conduct, leave and go to the officer's desk and then
return for more frivolity to pass time.
Claimant claims he commenced playing with a pair of elastic bands, which he
speculated had been removed from the outside of sneakers. The two bands had
been tied together to form a single band. Claimant avers he had the elastic
band wrapped around his wrist and through his hand, and he was using it to
"smash roaches off the wall." He related that Sargent approached his cell and
inquired what he was doing. Claimant held out the elastic band, without turning
around to face Sargent. Sargent reportedly reached through the feed-up slot in
claimant's cell, grabbed the band, pulled on it, causing claimant to spin
around. Allegedly, Sargent then let go of the band and the band purportedly
snapped back, hitting the left side of claimant's face and his left eye.
Claimant testified that Sargent told him not to worry and that he should put
some water on his face. However, after approximately 15 minutes, a nurse
observed claimant and he was sent to the infirmary. Claimant recalled that as
Sargent escorted him to the infirmary, the officer pleaded with him not to
implicate his involvement. Claimant stated that he agreed not to mention
Sargent's involvement because he feared retribution if he did not do as the
officer requested. Claimant told the nurse in the infirmary that he got poked
in the eye by a piece of elastic with which he was playing (
, Claimant's Exhibit 1, at 11).
The following morning, claimant returned to the facility's infirmary, where he
was examined by Dr. William A. Smith. Dr. Smith observed blood in claimant's
left eye and therefore immediately sent him to the emergency room at the Glens
Falls Hospital. Claimant eventually came under the care of Dr. Dennis Picano,
an ophthalmologist. Dr. Picano diagnosed a traumatic hyphema, prescribed
certain medicines and directed bed rest for claimant. When claimant returned to
Great Meadow, he was housed in the infirmary where he was closely monitored and
kept on bed rest. Claimant was transported to several follow-up visits with Dr.
Picano in July 1992.
Claimant was discharged from the infirmary at Great Meadow on August 3, 1992
and returned to general population. According to claimant, he was directed to
return to his prior prison job, which included unloading trucks that delivered
goods to the mess hall. Claimant testified that he told a correction officer
that he did not think he was ready to engage in lifting, but the officer
responded that he "didn't want to hear it" and that claimant "was to go to
work." Claimant related that he thus returned to his job and, although he
attempted to avoid lifting, he was required to move boxes weighing up to 100
pounds. Claimant recalled that he started experiencing "tightness" in his left
eye. He went to a doctor at the facility and was given a pass excusing him from
Claimant testified that he woke up one morning and there was a "sewer cap"
partially blocking the vision in his left eye. He had a sensation of a "cloud
coming in" his field of vision. Claimant stated that he "yelled" for a
correction officer to take him to the infirmary. He was taken to see Dr. Smith
and, according to claimant, Dr. Smith looked in his eye using a flashlight and
then said there was "nothing wrong." Claimant contended that he "yelled and
screamed" as he was taken back to his cell. Claimant recalled that the next
morning his vision had continued to deteriorate and that he "screamed" that he
needed to see a doctor. According to claimant, Dr. Smith again told him that
there was "nothing wrong" and sent him back to his cell. Claimant averred that
his repeated requests to be sent to Dr. Picano were ignored. About one week
after claimant's purported vision loss had started, he was taken to see Dr.
Picano for a regularly scheduled follow-up visit on August 17, 1992. Dr. Picano
diagnosed a detached retina. Claimant was sent to Albany Medical Center where
he underwent two surgeries to reattach the retina in his left eye.
Claimant testified that when he returned to Great Meadow following the
surgeries, he finally told a guidance counselor about the alleged involvement of
Sargent in the initial injury to his eye. Following the surgery claimant
continued to have a variety of problems including double-vision and
Cross-examination of claimant included questioning about his extensive
criminal record. Claimant initially stated that he could not recall his early
convictions, but upon further questioning, he eventually remembered many of
them. He explained that one of his assault-related convictions resulted from a
police officer injuring his hand when the officer hit claimant in the face.
Claimant initially stated that his domestic violence conviction in Florida
"never happened" and that the whole thing arose when his wife caught him
"cheating with another woman." Later, he stated that the domestic violence
incident in Florida occurred when he disarmed his wife who was attempting to
Claimant stated that he had been in cell three on C block three days before
the alleged incident with Sargent. He acknowledged that he did not know Sargent
before the date of the incident and maintained that he found the elastic band a
few minutes before the incident. The band was tied, together with a sheet,
between the posts of his bunk. Claimant admitted that he initially reported
that he had snapped himself. He acknowledged that prior to the incident he
lifted weights and that he still works out with weights. He denied lifting
weights while under treatment for his eye problem. Claimant further admitted on
cross-examination that he had previously accused correction officers of doing
things they had not, in fact, done.
Claimant produced as an expert Dr. Scott Weissman, a member of the faculty at
New York Eye and Ear Infirmary. Dr. Weissman testified that the extent of
recovery from a detached retina is significantly affected by how quickly the
retina is repaired. He stated that the typical window of opportunity ranges
from 24 to 48 hours and that longer delays generally do not result in a recovery
"anywhere near 90 percent." He related that a general practitioner should be
able to diagnose a detached retina and should be aware of the 24 to 48- hour
window for optimal repair. Dr. Weissman described the initial injury sustained
by claimant as bleeding between the cornea and the lense. He agreed that eye
drops and bed rest were a proper course of treatment. He stated that rest can
prevent a retina from detaching. When presented with the facts as related by
claimant, Dr. Weissman opined that the elastic striking claimant's face caused
the initial hyphema, that claimant should not have engaged in heavy lifting as
soon as he did and that the delay of approximately one week in providing
treatment after the onset of symptoms related to the detached retina was a
departure from accepted medical practice. He indicated that it was not possible
to conclude that heavy lifting caused the detachment but he believed it
significantly increased the chance of detachment.
Inmate Albert Bell, who was subpoenaed by claimant, stated that on the evening
of the incident he was in his cell reading. He recalled that claimant was
making a lot of noise and that Sargent told claimant to "get off" the cell bars.
Bell related that about 15 to 30 minutes later he heard claimant yelling and, at
that time, Sargent was at the officer's desk on the gallery. Bell stated that
he did not recall telling someone who investigated the incident that claimant
and Sargent were engaged in horseplay prior to the incident.
Correction Officer Sargent testified that he did not interact with claimant on
the subject evening until he heard claimant yelling that he had injured his eye.
Sargent stated that he went to claimant's cell and asked what was wrong.
Claimant purportedly responded that he had struck himself with a rubber band.
Sargent related that a nurse was making rounds and he asked her to look at
Sargent stated that he did not know claimant before the incident. He was
assigned to D block on July 13, 1992 and covered C block briefly while the other
officer on duty in the area escorted the nurse on her rounds. He estimated that
he had been on C block only five to ten minutes before the incident occurred.
Sargent also denied putting his arm through the feed-up slot in claimant's cell.
He elaborated that correction officers are specifically warned in training of
the significant danger to which they would expose themselves by putting an arm
through an inmate's feed-up slot.
Claimant's father, Charles Heinz, Sr., who proved to be a very sincere
witness, testified that he is a retired New York City police officer. Mr. Heinz
had lost an eye and was thus particularly concerned when he heard his son was
experiencing a problem with his left eye. He recalled receiving calls from
claimant in which claimant related that he was very concerned about his eye and
thought he was going blind but that nobody would help him.
Nurse Carolyn Spaulding was on duty and visited C block on the evening
claimant was injured. She asked claimant how he was injured and he stated that
a rubber band struck him in the eye. Claimant was escorted to the facility
infirmary. She observed that Sargent "acted normal" and did not seem
Dr. William A. Smith was called as a witness by defendant. Dr. Smith has been
a general practitioner since 1954. He "semi-retired" in 1985 and has worked two
days a week at Great Meadow since 1988. Refreshing his memory by using
claimant's ambulatory health records, Dr. Smith testified that he examined
claimant on July 14 in the facility's clinic. He observed blood in claimant's
left eye and immediately made arrangements to have him sent to the emergency
room at Glens Falls Hospital. He related that he wanted claimant to be seen by
a doctor with expertise in eye problems and that the quickest way to make such
an arrangement was to send him to the emergency room. Dr. Smith indicated an
acute concern for the eye injury that he observed in claimant because his son
had been struck in the eye playing racket ball as a teenager and eventually lost
the vision in his eye.
Dr. Smith stated that after claimant returned to Great Meadow on July 14 from
his initial visit with Dr. Picano, he was admitted to the facility's infirmary
and held there until August 3. Claimant was taken to see Dr. Picano for three
follow-up visits during that last two weeks of July. The July 31 report from Dr.
Picano indicated that claimant's hyphema had improved and that claimant could
return to moderate activity. Dr. Smith reported that claimant was discharged
from the facility infirmary on August 3. Dr. Smith stated that he saw claimant
on August 11 and, at such time, he issued claimant a permit excusing him from
all physical exertion.
Dr. Smith was asked about claimant's contention that he had visited him with
complaints of loss of vision and that the doctor had sent claimant back to his
cell. Dr. Smith adamantly denied that such events occurred. He stated that he
"resented" the assertion that he would engage in such conduct. Dr. Smith
testified that if claimant had told him that he was losing his vision, he would
have sent him out "immediately" to his ophthalmologist. When Dr. Smith was
asked about claimant's purported statement to him about a "sewer cover" and
"clouds" forming in his field of vision, Dr. Smith stated that such comments
would have resulted in claimant being sent to the ophthalmologist. He also
stated that a notation would have been made in claimant's health record
regarding any such comments by claimant.
Credibility is a critical issue in the claim before the court. If the version
of events reported by claimant rang substantially true, liability would follow.
Weighing evidence and assessing veracity of conflicting testimony is often an
arduous task for which there is no precise or flawless test. There are no
juries in the Court of Claims and therefore the court's responsibilities include
deciding witness credibility and resolving factual disputes (
Le Grand v State of New York
, 195 AD2d 784, 785, lv denied
663; Colangione v State of New York
, 187 AD2d 844; see, Savio v State
of New York
, 703 NYS2d 548).
court discerned crucial credibility problems with key aspects of claimant's
testimony. In addition to claimant's criminal record, his testimony at trial
suffered many infirmities. For example, at the beginning of cross-examination
he claimed not to remember many aspects of his criminal record. Upon continued
questioning, he selectively recalled various aspects of his criminal past. When
questioned about his conviction in Florida for domestic violence, he attempted
initially to explain the incident as a husband and wife dispute that was blown
out of proportion and was rooted in his infidelity. Later, he contended that he
received a resultant four-year sentence because of injuries accidently inflicted
on his wife while preventing her from committing suicide. Claimant testified
that on at least two occasions he was seen by Dr. Smith while losing his vision,
that he screamed for help and the doctor cavalierly dismissed his complaints.
Dr. Smith's adamant denial that he would treat any inmate in such a fashion was
more convincing; particularly when weighed with the facts that Dr. Smith had
afforded prompt treatment when he first saw claimant for a hyphema and also that
the doctor's son had suffered the loss of an eye because of an injury.
Claimant's poor credibility eroded essential elements of his claim. The court
concludes that Sargent truthfully testified that he had no involvement in
claimant's initial injury. Among other factors, the court found it particularly
untenable that Sargent – who did not know claimant – would endanger
himself by reaching his arm through claimant's feed-up slot. The court further
found Dr. Smith to be a credible witness and concludes that claimant did not
present himself to Dr. Smith with complaints about loss of vision between August
3 and August 17, 1992.
The proof presented also did not convince the court that claimant was required
to do heavy lifting shortly after being discharged from the facility infirmary
in early August 1992 and that such lifting was a substantial cause of claimant's
detached retina. Initially, the court notes that claimant's expert, while
opining that exercise could increase the risk that the retina would detach,
nevertheless acknowledged that it was "impossible to say" whether heavy lifting
caused the condition. More importantly, claimant's poor credibility dissuades
the court from accepting his assertion that he lifted boxes weighing up to 100
pounds. By the end of July, claimant had been given a clearance by Dr. Picano
to resume moderate activity. When claimant subsequently complained to Dr. Smith
on August 11 about the extent of his activity, Dr. Smith gave him a pass
excusing him from all physical activity. The credible evidence regarding
defendant's conduct failed to establish that culpability of defendant caused
claimant's condition. Thus, despite the court's sympathy for claimant's severe
impairment of vision of his left eye, an award of money damages cannot be
The claim is dismissed and the Chief Clerk of the Court of Claims is directed
to enter judgment accordingly.