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.
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
Francis T. Collins
Henry N. Diaz, Esquire
Honorable Eliot Spitzer, Attorney GeneralBy: Glenn C. King, Esquire, Staff Attorney
March 1, 2000
See also (multicaptioned
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
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
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
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
The final testimony received at trial was deposition testimony of Correction
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
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
'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
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
case that he has sustained a serious injury (Andre v
, 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
, 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
, _____ 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
IMPRESSION: 1. MILD DISK DESICCATION AND FOCAL ANNULAR FISSURING AT L5-S1.
THERE IS NO EVIDENCE FOR HERNIATION OR CANAL/FORAMINAL STENOSIS.
2. MILD FACET DEGENERATIVE CHANGES AT L4-5.
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
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
that he sustained a serious injury as defined in section
5102 of the Insurance Law requiring the granting of the dismissal
The Clerk is directed to enter a judgment in accord with this
March 1, 2000
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of