New York State Court of Claims

New York State Court of Claims

LESLEY v. THE STATE OF NEW YORK, #2000-016-049, Claim No. 93877


Medical malpractice claim of pro se inmate complaining of medical treatment at Woodbourne Correctional Facility in connection with problems with his "artificial bowel" was dismissed after trial

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):

Alan C. Marin
Claimant's attorney:
Shon Lesley
Defendant's attorney:
Eliot Spitzer, AAGBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
July 24, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)

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 witnesses.
Claimant testified that at age 15, he was diagnosed with ulcerative colitis. In 1989, while he was incarcerated, a colectomy was performed on him,
i.e., 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 colorectal surgeon.
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 his choice.
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 McCauley, 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 outside facility.[1]
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, supra. 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 Court.
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 dismissed.


July 24, 2000
New York, New York

Judge of the Court of Claims

  1. [1]The fact that the Department of Correctional Facilities had entered into an agreement with St. Agnes Hospital concerning the treatment of inmates does not change the fact that Lesley's treatment was performed by an outside facility; the contract itself states that St. Agnes and the physicians attending an inmate "shall be solely responsible for medical care rendered to the inmate inpatient, as the same is rendered to all patients" at St. Agnes. See §II.2 of the contract annexed to Exhibit 4.