New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2000-010-033, Claim No. 93036


Synopsis


Inmate med mal, elbow surgery

Case Information

UID:
2000-010-033
Claimant(s):
LARRY JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93036
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
LARRY JOHNSONPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 7, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant, an inmate proceeding
pro se, seeks damages for the alleged medical malpractice and negligence of defendant in regard to elbow surgery performed on claimant, at Helen Hayes Hospital, on August 22, 1993. This claim was heard in a unified trial at Sing Sing Correctional Facility ("Sing Sing") on June 27, 2000.
At the outset, claimant made an oral application for an adjournment of the trial, due to the loss of his papers upon his transfer from Sing Sing to an upstate facility on December 21, 1999. Notably, claimant had six months after his transfer from Sing Sing to retrieve any and all documents necessary to prepare for this trial. Accordingly, his application for an adjournment was DENIED.

Claimant testified that Dr. Baruch at Helen Hayes Hospital was negligent in performing the surgery to claimant's left elbow by failing to remove all of the bone chips and that this has caused claimant continued pain. Claimant also stated that he has continued to see a doctor for pain medication. Claimant testified that, as a result of this negligence, he had to undergo a second surgery on his left elbow.

To establish a claim of medical malpractice, claimant must prove,
inter alia, that his "injuries proximately resulted from the defendant's departure from the required standard of performance" (Tonetti v Peekskill Community Hosp., 148 AD2d 525). Claimant offered no evidence to establish the requisite standard or that the treatment rendered to claimant constituted a departure from the applicable standard. Significantly, claimant failed to present any competent medical evidence, either from a treating physician or from an expert whose opinion was based upon the available medical records, to support claimant's allegations. Claimant's own unsubstantiated assertions and speculations that, all the bone chips were not removed in the first surgery and that defendant's negligence necessitated a second surgery, are insufficient to establish merit and a prima facie case (see, Wells v State of New York, 228 AD2d 581; Mosberg v Elahi, 176 AD2d 710, affd 80 NY2d 941; Quigley v Jabbur, 124 AD2d 398).
Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 93036.


July 7, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims