Claimant, appearing pro se, brings this Claim against the State of New
York (hereinafter "State") alleging, among other things, denial of medical
treatment and care; lack of informed consent; and medical malpractice. The
trial of this Claim was heard at Sullivan Correctional Facility on May 9, 2000.
At trial, Claimant presented his own testimony, with the assistance of an
interpreter, and two exhibits. Claimant's exhibits were comprised of a letter
from Lester N. Wright, M.D, the Associate Commissioner/Chief Medical Officer for
the State Department of Correctional Services (hereinafter "DOCS") dated July
14, 1995 and his DOCS medical file, Claimant's Exhibits 1 and 2, respectively.
The testimony and evidence produced at trial establish that Claimant suffered
from "[p]eptic ulcer disease manifested by a duodenal bulb deformity (or scar)"
sometime prior to his incarceration in 1990. (Cl. Ex. 2, p 2). Thereafter,
Claimant underwent surgery for a ruptured appendix on May 24, 1992. Claimant
testified, and his medical file confirms, that he complained of generalized
stomach pain before and after his appendectomy, as well as numbness in and
around his appendectomy scar both of which interfered with his sleep for the
past seven to eight years. Claimant testified that his numerous requests to be
seen by medical specialists outside of the normal prison staff to evaluate these
complaints were denied.
Contrary to Claimant's testimony, Claimant's medical file reveals an internal
memorandum at the Shawangunk Correctional Facility indicating that Claimant
[m]edically evaluated by various health providers on more than 20 occasions for
his complaints of: numbness around post appendectomy scar, gastrointestinal
distress and abdominal pain. In addition he had blood tests, urine tests,
x-rays, surgical consultations and referrals to the Gastroenterology Clinic at
St. Agnes Hospital. These tests revealed no abnormalities, no infection and no
evidence of acute peptic ulcer. Numbness around postoperative scar was
explained to Mr. Urena on numerous occasions as normal post operative symptom
which does not require treatment. His bizarre request to have entire body
x-rayed or referral to a board certified Oncologist are not medically indicated.
(Cl. Ex. 2, p 2, Shawangunk Correctional Facility memorandum dated January 4,
Moreover, the record reflects that Claimant may not have taken his stomach
medications as recommended on at least two
and refused a recommended mental
health appointment in 1994. (Cl. Ex. 2, p 2). On cross-examination, Claimant
acknowledged a general awareness of existing sick call
and that the doctors had informed
him that "negative findings" required no further
The State presented no proof, but instead moved to dismiss based upon
Claimant's failure to establish a prima facie case for denial of medical
treatment; lack of informed consent; and/or medical malpractice. The State's
motion to dismiss on which the Court reserved at trial is now granted.
To establish a claim premised upon improper medical care, a claimant must prove
that there was a departure from the accepted standard and that such departure
was a proximate cause of an injury. (Amsler v Verrilli
, 119 AD2d 786).
Moreover, Claimant must present expert testimony in order to establish medical
malpractice. (Macey v Hassam
, 97 AD2d 919, 919-920). Here, Claimant
offered no expert testimony of any kind to establish that his medical treatment
was substandard or that he has been injured in any
Furthermore, no evidence was
presented from which this Court could conclude Claimant was not informed of the
potential risks of the appendectomy surgery or that the surgery was anything
other than a lifesaving emergency operation. Consequently, Claimant has failed
to meet his burden of establishing a prima facie case of denial of medical
treatment and care, lack of informed consent, and/or medical malpractice.
Based on the foregoing, Claim No. 92166 is DISMISSED.
ENTER JUDGMENT ACCORDINGLY.