New York State Court of Claims

New York State Court of Claims

URENA v. THE STATE OF NEW YORK, #2000-019-004, Claim No. 92166


Claim DISMISSED based on Claimant's failure to establish a prima facie case of medical malpractice or lack of informed consent.

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):

Claimant's attorney:
Defendant's attorney:
BY: Michele M. Walls, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 6, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

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 was:

[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, 1995).

Moreover, the record reflects that Claimant may not have taken his stomach medications as recommended on at least two occasions[1] 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 procedures[2] and that the doctors had informed him that "negative findings" required no further treatment.[3]

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 manner.[4] 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.


June 6, 2000
Binghamton, New York

Judge of the Court of Claims

[1]Cl Ex. 2, p 2 [Shawangunk Correctional Facility memorandum dated January 4, 1995]; see also, Defendant's Supplemental Response To Claimant's Demand For Verified Bill of Particulars, ¶ 1.
[2]On cross-examination, while Claimant acknowledged the existence of sick call procedures, he claimed that every time he went to sick call the medical staff did nothing about his complaints.
[3] Unless otherwise indicated, all quotations are from the Court's trial notes.
[4]This trial was previously adjourned at Claimant's request specifically "[f]or the limited purpose of allowing the Claimant an opportunity to retain a medical expert and time to send his medical records to his chosen medical expert for review in preparation for trial." (Urena v State of New York, Supplemental Order, July 2, 1999, Lebous, J., Claim No. 92166, Motion Nos. M-59576 & M-59704, p 2 ).