New York State Court of Claims

New York State Court of Claims

McLEAN v. New York, #2000-015-500, Claim No. 99665


Absent competent medical proof that a claimant sustained a serious injury as defined in section 5102 of the Insurance Law a claim alleging injuries to a passenger in a motor vehicle accident must be dismissed for failure to establish a prima facie case.

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):

Francis T. Collins
Claimant's attorney:
Henry N. Diaz, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: Glenn C. King, Esquire, Staff Attorney
Third-party defendant's attorney:

Signature date:
March 1, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

This claim concerns a motor vehicle accident which occurred on November 14, 1997 on the New York State Thruway while the claimant was being transported to Albany Medical Center for surgery in a van owned by the State of New York and operated by employees of the Department of Correctional Services (DOCS).
The claimant currently resides in Jamaica, New York and was incarcerated at Eastern Correctional Facility during the period at issue here. Claimant testified that he was notified by facility personnel on November 13, 1997 that he would be transported the following day for surgery scheduled at Albany Medical Center. The claimant was housed in the facility infirmary that evening and awakened in the early morning hours of November 14, 1997 to prepare for the trip to Albany. Claimant testified that he was escorted from the infirmary to a holding pen, a strip search was conducted and he was handcuffed and shackled. Claimant described the restraints as including a set of handcuffs connected to what he described as a black box, which was in turn connected by a short chain to a larger chain placed around his waist. Claimant's feet were also shackled. Once the claimant was handcuffed and shackled he was escorted to a DOCS van by Correction Officer Calhoun. The claimant was placed on the bench seat directly behind the driver's side front seat which was separated from the claimant by what was described as a cage. Correction Officer Calhoun then locked both side doors to the van, entered the front passenger seat next to Correction Officer Gaffney who then started the vehicle and proceeded onto Route 209 and then the New York State Thruway.

The claimant described the weather as difficult, including heavy snows and strong winds. Claimant testified that in his opinion Correction Officer Gaffney was driving the vehicle in an unsafe manner in that the van passed other cars while proceeding north on the Thruway which made the claimant "nervous" given the prevailing weather conditions. According to the claimant, as the van proceeded in the right lane of traffic the back end began to suddenly fishtail to the left, swerved back to the right, again to the left and veered off the roadway surface across the shoulder and came to rest in a ditch. Claimant testified that, although seat belts were available, he was unrestrained and moving freely around the van as it swerved on the roadway and that he was thrown against the cage as the van came to rest. Correction Officer Calhoun exited the vehicle in order to inspect it while Gaffney tried and failed to extricate the van from the ditch. Correction Officer Gaffney then radioed for help and a New York State Trooper arrived shortly thereafter. Claimant testified that Correction Officer Gaffney spoke with the first trooper who subsequently left the scene after a second trooper arrived. Shortly thereafter, a flatbed tow truck was called, arrived on the scene, and removed the van from the ditch. The van then continued its trip to Albany Medical Center where it thereafter arrived safely.

Claimant exited the vehicle, entered the hospital, and was taken to a room to be prepared for surgery. According to the claimant, he next remembers waking up in a wheelchair and being told by Correction Officer Gaffney that he should get up, it was time to go. Claimant was in pain from his surgery and described his condition as semi-conscious. He was assisted in dressing by Correction Officer Gaffney, his handcuffs and shackles were reapplied and claimant was taken out of the hospital and placed back in the van and returned to Eastern Correctional Facility.

Upon his arrival at Eastern Correctional Facility claimant was admitted to the facility infirmary where he was interviewed by a nurse and went straight to sleep. The next morning when claimant awoke he described his neck as being swollen and sore. Infirmary personnel provided the claimant pain medications, a neck brace and applied hot packs to his upper back and neck. On Monday, November 17, 1997 claimant was seen by Dr. Magill who, according to claimant, requested X rays of his neck. Claimant was prescribed 600 milligrams of Ibuprofen and muscle relaxers and was thereafter discharged from the facility infirmary on December 1, 1997. While in the infirmary claimant was examined by various other doctors including Dr. Fortier. Upon his release from the infirmary claimant explained that his physical activity was restricted by order of the infirmary personnel but that he experienced difficulties in navigating the steps required to reach his cell located on the dormitory's fourth floor. Claimant testified that he reported to sick call on December 3, 1997 complaining of an inability to climb the stairs and was put on medical keeplock for two days until he could be seen by a physician. Later that same day claimant described an incident wherein his "legs gave out" while in his cell.

According to claimant he could not feel any sensations from his waist down. The correction officer on duty called the facility's emergency unit which placed the claimant onto a flat board, strapped him down and took him to the infirmary. Claimant was thereafter examined by Dr. Fortier and readmitted to the infirmary and restricted to bed rest. Claimant was later released from the infirmary on February 2, 1998. During the period December 3, 1997 to February 2, 1998 claimant was administered Ibuprofen and muscle relaxants for his back pain and sent to be examined by orthopaedic surgeons at the Coxsackie Correctional Facility infirmary. Following his discharge from the Eastern Correctional Facility on February 2, claimant was restricted to first floor housing and prohibited from engaging in sports activities and work.

On cross-examination, claimant reiterated his testimony on direct that neither correction officer asked his condition following the accident nor was he interviewed with regard to any potential injuries when he arrived at Albany Medical Center. Claimant described his injuries as resulting in upper and lower back soreness. Exhibit A, a letter from plaintiff to Dr. Greifinger dated June 19, 1996, was received into evidence. In the last paragraph thereof claimant complains of headaches, upper and lower back soreness and speculates that perhaps his symptoms result from a pinched nerve or possible disk problem.

Claimant concluded his direct case with the examination before trial testimony of Correction Officer Gaffney who was deceased at the time of trial.

The only witness to testify on behalf of the defendant was Correction Officer John Calhoun. Officer Calhoun described the events of November 14, 1997 as he accompanied the claimant and Correction Officer Gaffney on the trip from Eastern Correctional Facility to Albany Medical Center Officer Calhoun was seated in the van's front passenger seat next to Officer Gaffney who was operating the vehicle. The officer indicated that while on the Thruway, Officer Gaffney proceeded in what was described as a reasonable manner, passing some vehicles and being passed by others. According to Officer Calhoun, as the van proceeded north on the New York State Thruway it encountered slippery road conditions which caused the van to slide sideways off the road, across the shoulder and into a ditch where it came to an "easy stop" suffering no damage in the process. When the vehicle came to a stop Officers Gaffney and Calhoun both inquired of the claimant whether he was injured to which he responded that he was not. According to Officer Calhoun claimant was seated on the bench seat behind the cage. Officer Gaffney then called the State Police who arrived shortly thereafter. A tow truck was called, the van was extricated and continued its journey. During this time, estimated by Officer Calhoun as a total of one-half hour, claimant at no time made any complaints with regard to his physical condition.

The final testimony received at trial was deposition testimony of Correction Officer Gaffney.

The defendant moved to dismiss the claim at the conclusion of the claimant's proof on the basis that the claimant had failed to establish that he suffered a serious injury as required by section 5102 of the Insurance Law. Decision was reserved and the Court will now address the defendant's motion.

In the first instance, the Court notes that the claim fails to contain the allegation required by CPLR 3016 (g) that claimant has sustained a serious injury as defined in Insurance Law § 5102 and, therefore, the claim does not state a cause of action (
Sullivan v Darling, 81 Misc 2d 817). More importantly, the claimant has failed to submit sufficient medical proof in evidentiary form establishing prima facie that he sustained a serious injury as defined in Insurance Law § 5102 (d). As a passenger in the motor vehicle operated by Correction Officer Gaffney claimant was a covered person as defined in Insurance Law § 5102 (j). As such, he can only maintain this claim if he has sustained a serious injury. Serious injury is defined in Insurance Law § 5102 (d) as follows:
'Serious Injury' means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of a use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non–permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
Analysis begins with the recognition that claimant has the burden of proof in establishing that he sustained a serious injury (
Cooper-Fry v Kolket, 245 AD2d 846). An inmate has the same burden as any other litigant to submit expert medical evidence when the facts of the case so require (Duffen v State of New York, 245 AD2d 653). In the rare case where the injury is within the experience of ordinary lay persons causation and a serious injury may be established without expert medical testimony (Lanpont v Savvas Cab Corp., 244 AD2d 208). However, when the alleged injuries are internal injuries to the back or neck the injured party must submit expert medical testimony regarding causation and prognosis in order to establish a prima facie case that he has sustained a serious injury (Andre v Seem, 234 AD2d 325), and ordinarily that medical evidence will require objective findings through diagnostic studies, X rays, CAT scans or MRIs in order to diagnose a spinal injury (Bushman v Di Carlo, ____ AD2d ____, 2000 WL 84887). The expert medical witness must state his opinion concerning the injuries to a reasonable degree of medical certainty (Dumas v Valley View House, Inc., 235 AD2d 767).
Under the definition of serious injury contained in the Insurance Law a soft-tissue injury related to the spine is not sufficient (
Rath v Shafer, ____ AD2d _____, 699 NYS2d 512) and it "is fundamental law that 'a medical opinion based upon subjective complaints of pain is insufficient to support a claim of serious injury' " (Crandall v Sledziewski, 260 AD2d 754, 757). There must be objective medical testing to support medical testimony that a serious injury has been sustained (O'Reilly v Nelson, 261 AD2d 372) and the lack of abnormalities in X rays (Zupan v Hart, ____ AD2d ____, 699 NYS2d 155) or MRIs (Stone v Hidle, _____ AD2d _____ 698 NYS2d 351) will establish prima facie that no serious injury has been sustained. Subjective complaints of pain, even when coupled with evidence of a herniated or bulging disk, will not suffice as there must be expert medical testimony in admissible form linking the bulging or herniated disk to a loss of range of motion or other objective symptoms (Guzman v Paul Michael Management, _____ AD2d ____ 698 NYS2d 719).
A review of the claimant's alleged injuries and the quality of the medical proof submitted is required at this juncture. The claim alleges that on the morning after the accident the claimant suffered from back pains and a swollen neck. At paragraph 48 of the claim it is alleged that claimant "suffered a 'disk degeneration at C5-6' " as a result of the accident. The same injury is set forth in the bill of particulars with an allegation that claimant continues to experience pain in his upper and lower back. The Court received into evidence Exhibit A which is a letter from claimant dated June 19, 1996, approximately 17 months before the automobile accident occurred, which was addressed to Dr. Robert Greifinger, Deputy Commissioner and Chief Medical Officer of DOCS, in which claimant complains:
I am still suffering from constant pains and headaches, this is not normal for any individual my age group, due to the fact I am popping three or more, 400 mg Ibuprofen to control this [sic] constant headaches and pains I am suffering from. I am starting to believe that I might have a pinch nerve [sic] or a disc problem which may be causing these constant headache [sic], my neck and upper back along my spine has constant pains.
Thus, more than a year and a half before the incident giving rise to this litigation the claimant was contending that he had constant back pain caused by a disk problem or a pinched nerve. Upon claimant's return to Eastern Correctional Facility following his surgery he made complaints concerning an injury to his spine. X rays taken at Albany Medical Center on November 17, 1997 of the cervical spine disclosed no evidence of fracture or mal-alignments and the "prevertebral tissues and cranial cervical junction" were unremarkable. Further X rays were taken at Albany Medical Center and again disclosed no evidence of fracture or dislocation but did relate "very mild spondylosis". The Admission and Discharge Summaries for the Division of Health Service at Eastern Correctional Facility for December of 1997 through February of 1998 indicate that the medical personnel believed that claimant was exaggerating his injuries as there were no objective medical findings to support the alleged symptoms. The Court credits the belief of the medical personnel that claimant's confinement to the infirmary from December 3, 1997 to February 2, 1998, was brought about by claimant's exaggeration of his limitations and thus claimant was not prevented by a medically determined injury of a non-permanent nature from performing substantially all of his customary duties for 90 of the 180 days immediately following the occurrence since the restrictions upon his "customary activities were not medically indicated but rather, were self imposed" (
Delaney v Lewis, 256 AD2d 895). Albany Medical College orthopaedic surgeon Charles A. Gatto examined plaintiff at the Coxsackie Correctional Facility on February 20, 1998 with respect to his complaints of diffuse neck and back pain, allegedly caused by the accident. In his written report of May 18, 1998 Dr. Gatto related that:
On physical exam you had pain to light touch of your back and light head compression. Your physical exam showed no focal findings with the exception of a changing motor exam which seemed inconsistent with your gait.
Pursuant to Dr. Gatto's recommendation, bone imaging of claimant's entire body was performed at the Albany Medical Center on March 2, 1998 and the report of these tests relates:
These images demonstrate a normal pattern of tracer localization in the axial and appendicular skeleton which is free of evidence for bone pathology to explain this patient's neck pain.
An MRI of the lumbar spine was performed at Albany Medical Center on June 2, 1998 to rule out a pinched nerve and the report of Dr. Charles J. Davenport states:


CLINICAL: R/O pinched nerve.

PROTOCOL: Sagittal T1, sagittal and axial T2 images were obtained.

COMMENT: Vertebral body heights and signal intensities are appropriate. The conus is unremarkable.

There is mild disk desiccation at L5-S1 but disk height is preserved. The remaining lumbar disk levels maintain heights and signal intensity.

There is a 1 mm focus of signal brightening in the posterior central annulus at L-5-S1 consistent with annular fissuring.

The foramina are open. There is no evidence for frank herniation or stenosis. Mild facet changes are apparent at L4-5.
X rays taken of the cervical spine at Albany Medical Center on July 8, 1998 disclose no evidence of abnormal motion, fracture, dislocation and no mal-alignment. There was no evidence of soft tissue injury. An MRI of the cervical spine performed at Albany Medical Center on July 21, 1998 reveals as follows:
There is early disk degenerative change at C5-6. There is no herniation or cord impingement. Cord signal is normal. No canal stenosis evident.

The cranial cervical junction is open.
The Court has reviewed at length claimant's extensive institutional medical history received into evidence as Exhibit 3. That medical history fails to disclose any objective medical evidence that claimant sustained injuries to his lumbar or cervical spine as a result of this automobile accident. All of the X rays are negative for such injuries and the MRIs do not disclose anything other than routine disk degenerative changes. Claimant did not submit expert medical proof setting forth to a reasonable degree of medical certainty the injuries claimant allegedly sustained in the accident, or the severity and permanency of any such injuries. Absent that proof, and upon this record, claimant has failed to establish
prima facie that he sustained a serious injury as defined in section 5102 of the Insurance Law requiring the granting of the dismissal motion.
The Clerk is directed to enter a judgment in accord with this decision.

March 1, 2000
Saratoga Springs, New York

Judge of the Court of Claims