New York State Court of Claims

New York State Court of Claims

Konstantides v. THE STATE OF NEW YORK, #2000-007-509, Claim No. 98151


Inmate's claim that State failed to provide him with appropriate pain medicine for a fractured leg is dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

John L. Bell
Claimant's attorney:
George Konstantides, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General
(Michele M. Walls, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
April 28, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant contends that defendant failed to provide him with pain medicine for eight days after he sustained a fractured ankle at
Clinton Correctional Facility (hereinafter Clinton) in February 1998.[1]
On February 21, 1998, claimant injured his right ankle while playing basketball in the gym at Clinton. He was carried to the prison infirmary. Claimant's ankle was wrapped with a bandage and he was given crutches and ice packs. Claimant was sent back to his cell until February 23, when he was brought back to the facility infirmary and an X ray was taken which revealed a fracture. Claimant was examined by Dr. Lee, who placed a fiberglass splint on claimant's leg and ankle and then sent him back to his cell.

Claimant testified that he remained in his cell for eight days on medical keeplock, but that during such time he was not provided with any medicine for the pain he was experiencing. On March 3, claimant was transferred to Coxsackie Correctional Facility and two days later he was sent to Albany Medical Center, where surgery was performed on his fractured ankle.

On cross-examination, claimant acknowledged that he was given Tylenol after he injured his ankle. He was also offered Ibuprofen but refused to take it because he has a problem with stomach ulcers. Claimant agreed that the injury occurred on a Saturday. His leg was wrapped, ice was provided and he was told not to place any weight on the leg. He was also informed that he would be brought to see the doctor on Monday.

Nurse Lisa Babbie was called by defendant as a witness. Ms. Babbie stated that the medical records reflected that claimant was brought to the infirmary on February 21 and he was complaining of ankle and knee pain after he had twisted his right leg playing basketball. His ankle was bandaged and he was given crutches and excused from all activities. Claimant was given Tylenol and he declined Ibuprofen. Since it was a weekend, claimant was scheduled to return on Monday for X rays. Ms. Babbie stated that if a compound fracture or angulation had been apparent, claimant would have been sent out for emergency treatment and X rays. She related that the X ray taken of claimant on Monday, February 23, revealed a non-displaced fracture. On cross-examination, Ms. Babbie opined that Tylenol was a sufficient medicine for claimant's pain, particularly when combined with the fact he was given ice and told to keep his leg elevated.

When the State provides medical care, it is held to the same standard of care as private individuals and institutions engaging in the same activity (
Schrempf v State of New York, 66 NY2d 289, 294). The duty imposed with regard to medical care includes possessing and prudently exercising the level of skill and expertise acceptable by a member of the profession practicing in this State (see, Hoagland v Kamp, 155 AD2d 148, 150; Littlejohn v State of New York, 87 AD2d 951). Consistent with such standard, inmates are entitled to reasonable and adequate medical care (Kagan v State of New York, 221 AD2d 7, 11; Powlowski v Wullich, 102 AD2d 575, 587). To establish a claim premised upon improper medical care, a claimant must prove that there was a departure from the accepted standard and that such departure was a proximate cause of an injury (Amsler v Verrilli, 119 AD2d 786; see, Brown v State of New York, 192 AD2d 936, lv denied 82 NY2d 654).
Here, no proof was presented from an expert indicating that the course of treatment, including the treatment of claimant's pain, deviated from the accepted standard of care. The court concludes that claimant failed to prove his claim by a fair preponderance of the credible evidence.

The claim is dismissed and the Chief Clerk of the Court of Claims is directed to enter judgment accordingly.

April 28, 2000
Plattsburgh, New York

Judge of the Court of Claims

The claim also asserts medical malpractice for failing to promptly diagnose his fracture and failure to provide prompt treatment. However, at trial claimant stated that he was pursuing only the failure to provide pain medicine. The failure to diagnose and failure to promptly treat parts of the claim would have been dismissed in any event because claimant failed to produce expert evidence (see, e.g., Giambona v Stein, AD2d , 697 NYS 2d 399; Macey v Hassam, 97 AD2d 919).