In his claim,
Shon Lesley alleges medical malpractice by defendant in connection with
treatment for problems with his "artifical bowel." The claim was tried at
Sullivan Correctional Facility in Sullivan County on June 20, 2000. Lesley,
who appeared pro se
, testified on his own behalf. Defendant called no
Claimant testified that at age 15, he was diagnosed with ulcerative colitis.
In 1989, while he was incarcerated, a colectomy was performed on him,
, his entire large intestine was removed and replaced with an
"artificial bowel" called an "illeoanal reservoir pouch" or "J-pouch." The
surgery was performed at Albany Medical Center by Garner P. Johnson, M.D., a
Claimant explained that following the surgery, complications arose, in that
periodically, the pouch would "stricture up" and he would not be able to excrete
solid waste. When this happened, he would have to be scheduled for dilation
under anesthesia by Dr. Johnson at Albany Medical Center. Claimant added that
this condition occurred every twelve to fourteen months.
Lesley stated that in 1995, he was transferred from Sullivan to Woodbourne
Correctional Facility, and upon entry to Woodbourne, he reported that the
stricture condition was recurring. He asserted that he told two Woodbourne
physicians, Dr. Lancellotti and Dr. Makram, that normally, Dr. Johnson at Albany
Medical Center performed dilations for him. He said that Dr. Lancellotti tried
to contact Dr. Johnson, but apparently before that occurred, he saw Dr. Makram,
who he asserts told him that Albany Medical Center did not want to see him
anymore and that Dr. Johnson did not practice medicine there anymore.
Claimant said that he was then sent out to St. Agnes Hospital for a dilation by
a St. Agnes physician, Dr. Roth. According to claimant, following the St.
Agnes dilation, he learned that Dr. Lancellotti had been able to secure him an
appointment with Dr. Johnson and he went to that appointment on July 18, 1995;
claimant did not elaborate as to what occurred at that appointment, other than
to say that Dr. Johnson told him he would always be happy to see him.
Claimant recollected that three months following his dilation at St. Agnes, the
stricture condition recurred, which he said was the quickest that this had ever
happened. He was examined at Woodbourne and then sent back to St. Agnes. This,
he said, was despite the fact that he had begged Dr. Makram to send him to Dr.
Johnson, who claimant asserts was still in fact at Albany Medical Center despite
Dr. Makram's representation to the contrary.
Claimant was admitted to St. Agnes on December 5, 1995 for the purpose of
having another dilation performed on December 6. He recalled that on that day,
Dr. Roth approached him and asked him if in view of his continuing stricture
problem, he would like Dr. Roth to perform a procedure that Dr. Roth had never
done before, but that his supervisor had -- what claimant described as "anal
plastic surgery." Claimant recalled that Dr. Roth said he would detach the
rectum from the artificial bowel, and would cut away the part of the artificial
bowel with the stricture problem, and then reattach it. According to claimant,
Dr. Roth told him the surgery would take two hours and also said that in the
worse case scenario, all that would happen would be the return of the stricture
problem. Claimant said that he agreed to the procedure, and the surgery was
performed by Dr. Roth on December 6, 1995. He was discharged on December 7 and
returned to Woodbourne Correctional Facility.
Claimant testified that on December 9, 1995, he went to emergency sick call at
Woodbourne with excruciating pain. He said that he was bleeding, had sharp pain
and spasms and could not even stand up. He said that he reported the symptoms
to a facility physician each day until December 13. Claimant asserts that
during this period he again begged to see Dr. Johnson and was again told that
Dr. Johnson no longer practiced at Albany Medical Center. Claimant asserted
that following a three-way conference call with Dr. Makram, Dr. Roth and Dr.
Johnson, it was agreed that Dr. Roth would treat claimant, apparently on
December 13 at the St. Agnes emergency room.
Claimant asserts that on that date, he learned that he had an anal fissure. He
further asserts that after Dr. Roth examined him in the St. Agnes emergency
room, he told claimant he had "fucked up." Claimant said that Dr. Roth
re-admitted him to St. Agnes and he was treated with Demerol shots, Anusol and
warm sitz bathes.
Claimant recounted that he stayed at St. Agnes for five days and that Dr. Roth
determined that the fissure was healing. Claimant further stated that Dr. Roth
recommended that he go back to see Dr. Johnson.
Claimant recalled that several weeks later, the stricture problem recurred; he
thus asserts that what Dr. Roth had attempted to do with the plastic surgery did
not work. According to claimant, Dr. Roth determined that claimant needed
another dilation. This was ultimately done by Dr. Johnson. Claimant said that
thereafter, he did not have a recurrence of the stricture problem for another
fourteen months. Since that time, claimant has apparently been seeing another
colorectal surgeon at Albany Medical Center.
In sum, Lesley essentially asserts that Dr. Roth of St. Agnes Hospital
committed medical malpractice, apparently both with regard to the dilation he
performed and the "anal plastic surgery" procedure. Lesley also asserts that he
was wrongly told that Dr. Johnson no longer practiced at Albany Medical Center
and that he should have been able to see Dr. Johnson instead of Dr. Roth.
"It is fundamental law that the State has a duty to provide reasonable and
adequate medical care to the inmates of its prisons."
Rivers v State
, 159 AD2d 788, 789, 552 NYS2d 189 (3d Dept 1990), lv
denied, 76 NY2d 701, 557 NYS2d 878 (1990). However, claimant has presented no
authority that this duty extends to permitting claimant to see the physician of
As to the treatment provided by Dr. Roth, claimant presented no expert testimony
that accepted standards of medical care were not met. For instance, there was
no medical testimony that the more frequent strictures suffered by claimant were
in fact related to Dr. Roth's dilation or that he improperly performed the
plastic surgery procedure. Expert testimony on these issues would be required
for claimant to prevail in this medical malpractice case. See, e.g., Lyons v
, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814,
681 NYS2d 475 (1998).
A perhaps even more fundamental problem in this case is that the medical
treatment of which Lesley complains was not performed at a state facility or by
state employees – rather it was performed by an outside physician at an
There was no evidence to suggest that defendant had any knowledge that Dr. Roth
was inadequate. Accordingly, the state cannot be held liable for Dr. Roth's
treatment of claimant. See Rivers
. Any cause of action
claimant might have would thus lie against Dr. Roth or St. Agnes, over whom this
Court has no jurisdiction; such claims would lie in Supreme
In short, claimant failed to prove defendant's medical malpractice by a fair
preponderance of evidence adduced at trial. Accordingly, Shon Lesley's claim is
LET JUDGMENT BE ENTERED ACCORDINGLY.