New York State Court of Claims

New York State Court of Claims

HAKIM v. THE STATE OF NEW YORK, #2000-016-092, Claim No. 99642


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:
Abdul Basir Hakim
Defendant's attorney:
Eliot Spitzer, Attorney General by: Mary Kavaney, AAG
Third-party defendant's attorney:

Signature date:
November 8, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)

The claim of Abdul Basir Hakim, who had injured his finger exactly two years earlier, was tried on August 1, 2000 in the Mid-Orange Correctional facility. There were no witnesses at trial other than the claimant. What follows is essentially drawn from Hakim's testimony, which includes the medical records he submitted (cl exh 1).

At 7 p.m. on August 1, 1998, claimant was playing basketball in the gym at Otisville Correctional Facility (Orange County) when he accidentally pushed his left index finger against another inmate. At the time he believed he had "just a jammed finger." The next morning the finger was swollen and discolored. Hakim went to the housing officer on duty, who placed claimant on emergency sick call. The nurse on duty, Lee Hulbert, examined the finger, claimant asked for a splint, and was informed none were available.
Thereupon Hulbert taped the index finger to the third finger and gave claimant ibuprofen to reduce the swelling.
The following day, a Monday, claimant reported to his "assigned program" – the commissary where his job involved loading and unloading large boxes of foodstuffs --- for example, fifty-pound bags of rice. Hakim informed his job supervisor, Karen Amsterdam, that he "couldn't really work because the thing was hurting me ... [and that] picking up boxes would put a lot of pressure on the finger."

Amsterdam called the infirmary. Hakim went there immediately, where he was seen by Hulbert, and by head nurse
Miller who produced a splint and taped it to his finger. Within a week, Hakim was examined by a physician. When Dr. Miraflora asked if he was able to move his finger, claimant responded that he could. Hakim recalled that the doctor indicated he did not believe there was a fracture, but would, in any event, recommend an x-ray, which was taken August 11, 1998 at Albany Medical Center. The radiology report used terms to suggest a fracture and swelling, but inasmuch as no physician took the stand, we are without interpretative information:
COMMINUTED INTRA ARTICULAR FRACTURE...OF THE LEFT SECOND DIGIT...There is marked soft tissue swelling around the comminuted fracture...[ cl exh 1, p.8].
The facility's Ambulatory Health Record entries made later in that month of August describe the injury as a fracture ("Fx")
and a "chipped bone" (id., p.5, 8/21/98 & 8/26/98). Hakim was again x-rayed on September 21, 1998 at Albany Medical Center, which revealed "several small acute fracture fragments adjacent to the dorsal aspect of the base of the second left middle phalang." (id., p.7). This result is apparently consistent with that of the previous month, but again evaluative expertise is unavailable.
Claimant's testimony was that he wore the splint through December of 1998, working all this time from early August at the commissary unloading heavy items. According to claimant, a written note from a doctor or nurse is required to excuse an inmate under such circumstances. On the stand, Hakim stated that on several occasions he had asked to be so relieved or reassigned, but "everybody kept ignoring" him.
The defendant, for its part, did not contest Hakim's contention that he requested to be relieved from his unloading duties at the commissary. Nor did defendant argue that in any event such release is a direction within the special province of medical expertise, and it did not challenge Hakim's statement that such an excuse could also be supplied by a nurse
The State does object to a cause of action going forward based upon Hakim performing work assignments from which he arguably should have been excused. At trial, defendant asserted that it was surprised and prejudiced; it could have brought in someone "to testify what if any accommodations were made for claimant given his injury..." As pointed out on the record at trial, this issue was specifically raised by claimant in his Bill of Particulars (pages 4 and 5).

Although claimant submitted no written proof -- no written request or denial and the medical records he submitted contain no reference thereto -- left unchallenged was the basic contention that he requested to be relieved of heavy lifting and was ignored or denied the opportunity for alternate work or temporary relief. While I am mindful of the evidentiary weaknesses in his case, Hakim was fairly convincing in his insistence that he had made such requests and been rebuffed, and I find claimant, by a fair preponderance of the credible evidence, to be, on that score, believable.
* * *

Without expert medical testimony, claimant cannot make out a case based on his medical treatment. Medical malpractice requires a showing of a departure from accepted medical practice and a nexus between the malpractice and the injury claimed. See,
e.g., Fridovich v David, 188 AD2d 984, 591 NYS2d 885 (3d Dept 1992). Nor has Hakim demonstrated a deliberate indifference to his medical needs, which requires that the correctional facility knew of and disregarded an "excessive risk to inmate health or safety." Farmer v Brennan, 511 US 825, 837 (1994); see also Matter of Moore v Leonardo, 185 AD2d 489, 586 NYS2d 37 (3d Dept 1992). The failure to afford Hakim a respite from his customary work at the prison commissary potentially covers two causes of action. The first would try to prove that had he been so relieved, his index finger would have healed faster and/or more satisfactorily.[2] But that kind of case also requires medical judgment and the testimony of an expert.
Secondly is the pain and suffering claimant incurred while unloading the shipments to the commissary with his injured finger. The facility's failure to temporarily relieve Hakim of his assigned commissary duties
constitutes negligence on the part of the defendant; defendant submitted no evidence that reassigning Hakim would have required a not insignificant expenditure of money or manpower. A failure to reconfigure claimant's work duties may support a finding of negligence because such issue can be assessed by the trier of fact on the basis of common everyday experience. That is to be distinguished from medical malpractice, which turns on whether the conduct complained of involves a matter of medical science requiring special skills not ordinarily possessed by the lay person. See Matter of Barresi v State of New York, 232 AD2d 962, 963, 649 NYS2d 207, 209 (3d Dept 1996).
An entry in the submitted medical records dated December 28, 1998 noted that claimant's index finger was painful and swollen. During this period from early August to late December, Hakim continued to perform his previously assigned work at the prison commissary. I do not find sufficient evidence to support the claim beyond December of 1998. Accordingly, for the pain and suffering occasioned by somewhat less than five months of lifting heavy boxes and bags when he should have been excused from such duty on account of his injured index finger, Abdul Hakim is awarded the sum of

November 8, 2000
New York, New York

Judge of the Court of Claims

[1] The negligent act or omission by a nurse can be malpractice if the nurse's conduct itself constitutes medical treatment or such bears a substantial relationship to the rendition of medical treatment by a licensed physician. Bleiler v Bodnar, 65 NY2d 65, 489 NYS2d 885 (1985).

[2] When asked at trial about the current condition of his finger, Hakim responded that it was still swollen, is painful in cold weather, cannot be bent as much as pre-injury and prevents him from doing pull-ups on a chinning bar. Hakim is right-handed. At trial, when claimant was asked to hold up his hands, my observation, on the record, was that any swelling was not discernible, although the finger appeared somewhat crooked.