JOHNSON v.THE STATE OF NEW YORK, #2000-019-009, Claim Nos. 95572,96053
Claims for negligent, medical malpractice, and deliberate indifference relative
to maintenance of weight machine and care provided for resulting injuries were
dismissed due to failure to establish prima facie case.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
LAWRENCE JOHNSON, #95-B-2484, PRO SE
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Michael Friedman, Assistant Attorney General, of counsel
July 7, 2000
See also (multicaptioned
Claimant, an inmate appearing
, brings two claims against the defendant State of New York
(hereinafter "State") arising from injuries sustained on January 27, 1997, while
adjusting a weight machine at Shawangunk Correctional Facility (hereinafter
"Facility"). Claim No. 95572 alleges negligent maintenance and a lack of
supervision and/or training of disabled inmates with respect to the weight
machine. Claim No. 96053 alleges deliberate indifference and negligence against
the State due to its delay in rendering medical treatment to Claimant for his
resulting injuries. These claims were consolidated for trial and heard on May
10, 2000 at Sullivan Correctional Facility. Both trials were bifurcated and
this Decision addresses the issue of liability only.
I. Claim No.
Claimant, who uses a wheelchair to ambulate, testified he visited the
Facility's weight room on January 27, 1997. Claimant noticed the handle/bar on
one of the weight machines was stuck in a forward position away from the
machine. Claimant removed the safety pin from the weight adjustment shaft
causing the handle/bar to violently snap back toward the machine hitting him in
the head. Claimant testified he was knocked unconscious for a short period of
On cross-examination, Claimant admitted that at the time of this incident he
had been at the Facility for approximately one year. Furthermore, Claimant
acknowledged that during the course of that year he had used this weight
machine, or one just like it, at least 75 to 80 times prior to this incident.
Claimant called as a witness Carl Mabry, the Facility's Records and Program
Leader 1. The witness stated he was familiar with this weight machine and
indicated there was no prior history of any problem with this machine's
handle/bar or shaft. Mr. Mabry refuted Claimant's contention that this weight
machine had been modified in any way based upon his review of the machine's
Claimant also called as a witness Bryon Fox, the Facility's Fire and Safety
Officer. Mr. Fox personally inspected the machine after the accident and found
it to be in proper working order with nothing appearing broken or missing. (Cl.
Ex. 6). Mr. Fox concluded that this injury resulted from Claimant's improper
use of the machine. (Cl. Ex. 6). Mr. Fox indicated that this determination was
based on Claimant's own description, given during a post-accident interview, of
how this accident occurred.
Claimant asserts the weight machine was improperly maintained and/or modified;
that the Facility staff failed to train wheelchair inmates such as himself in
the proper use of this equipment in accordance with State Department of
Correctional Services ("DOCS") directives; and that rules and regulations for
using the machine along with instruction should have been posted in the weight
There can be no debate with the principal that the State has a duty to maintain
its premises in a reasonably safe condition. (
Basso v Miller
, 40 NY2d 233). However, the State is not and cannot be an
insurer of its facilities and negligence cannot be inferred solely from the
occurrence of an incident. (Mochen v State of New York
, 57 AD2d 719,
720). In order for this Court to find the State liable, Claimant must establish
1) the existence of a dangerous condition; 2) of which the State had actual or
constructive notice; and 3) which the State failed to remedy within a reasonable
period of time; and 4) which caused the injury sustained. (Gordon v American
Museum of Natural History
, 67 NY2d 836).
Claimant offered no proof whatsoever establishing this weight machine was
either improperly maintained or modified. Moreover, even if Claimant had
established that the machine had been modified or maintained in a dangerous
condition, he failed to submit any evidence the State had notice (actual or
constructive) of the same.
Next, Claimant alleged he never received training on the proper use of this
weight equipment prior to his accident, despite the existence of DOCS Directive
# 3.601(5) which states that wheelchair bound inmates should receive such
training. (Cl. Ex. 3). However, it is well-settled that while such directives
"[m]ay establish a standard of care and violation of the standard may lead to
liability if a common law or statutory duty is breached...", the mere violation
of a DOCS' directive or regulation does not impliedly create a cause of action
for money damages. (
A. Rabb Alamin/R. Price v State of New York
, Ct Cl., April 26, 1999,
McNamara, J., Claim No. 98122, p 2; see also, Campolito v State of New
, Ct Cl., April 27, 2000, Collins, J., Claim No. 94670). Moreover,
Claimant had another remedy in place to protect his inmate rights, namely the
inmate grievance process by which to request such
(Lawrence v State of New York,
180 Misc 2d 337, 340-341). Based on the proof submitted at trial, Claimant
has failed to establish that the State otherwise owed him a duty to enforce this
In any event, assuming,
, that Claimant established a breach of a duty to train he did
not establish that the failure to receive any training was a proximate cause of
his injury. In that same respect, Claimant failed to establish that the posting
of any regulations or instructions would have altered in any way his own conduct
of removing the safety pin from the weight adjustment shaft. With respect to
both contentions, Claimant had a full understanding of the workings of these
machines from the 75 to 80 times he used them and failed to establish how the
training or posting of any regulations or instructions would have altered his
conduct to any degree. The Court finds the proximate cause of this accident was
Claimant's own course of conduct in removing the safety pin from the equipment
while the handle/bar was in a forward position. In sum, based upon the credible
testimony established at trial, Claimant has not met his burden of proof as to
any of the allegations contained in Claim No. 95572.
II. Claim No.
Claim No. 96053 has its genesis in the same underlying facts recited above.
After sustaining a head laceration on the weight machine, Claimant was in need
of medical assistance. Claimant charges the State with what the Claim describes
as deliberate indifference and negligence for; 1) a 2 ½ hour delay at the
Facility infirmary; and 2) further delay while en route to the hospital.
A. Facility Infirmary
Claimant's uncontroverted testimony was that after the incident he was taken to
the Facility infirmary where he waited for approximately 2 ½ hours for a
determination whether to bring a doctor in or to send him out to St. Luke's for
treatment of his injuries. The only proof as to what transpired during this
time was Claimant's own rather nebulous testimony as
Claimant: After that I was taken to the hospital and I waited in the hospital
for about two and ½ hours and they ordered the transport officers to take
me to the outside hospital to receive stitches. I asked RN Wolf, I asked him
whether he was going to approve, you know give me an x-ray or what have you, and
he said he would most likely...
Court: Okay, Mr. Johnson you cannot testify to something someone else told you.
That's hearsay. He's objecting on an evidentiary basis that that's hearsay.
You can tell me that you had a conversation with someone and then what happened
as a result of that but you can't tell me what other people said to you.
Claimant: Okay. I had a conversation with the nurse pertaining to my head
injury and I requested a x-ray and the x-ray was denied at that time.
Court: So you said that you went to the hospital [Facility infirmary] and you
were there for about two hours?
Claimant: 2 ½ hours. They were deciding whether to send me out or have a
doctor come in. Afterwards they sent for three officers for an emergency run to
St. Luke's Hospital.
Inasmuch as Claimant's allegations go toward the treatment he received, if any,
while in the Facility infirmary it appears that this portion of the claim should
be categorized as medical malpractice rather than
As such, in order to establish a prima facie case of medical malpractice a
claimant must establish a deviation from the applicable standard of care and
that any such deviation was a proximate cause of his injuries. (Tonetti v
Peekskill Community Hosp.
, 148 AD2d 525). With respect to the standard of
care, Claimant did not produce the Facility nurse or any Facility medical
records from which this Court could conclude what medical treatment, if any, was
rendered while he was in the infirmary.
Additionally, Claimant testified to at least one discussion with a Facility
nurse which contradicts Claimant's assertions he was ignored by the Facility
staff. Moreover, Claimant did not offer the testimony of any expert witness
that there was a departure from the acceptable standard of
(Macey v Hassam
, 97 AD2d 919).
, this Court were to accept Claimant's implied
allegation that he received absolutely no medical attention during his 2 ½
hours at the Facility infirmary and that such omission constituted a deviation
from the standard of care, Claimant still failed to show that the delay
proximately caused harm or aggravated his injuries. (Naughton v Arden Hill
, 215 AD2d 810, 812; Brown v State of New York
, 192 AD2d 936,
937-938, lv denied
82 NY2d 654). Consequently, Claimant has failed to
establish a prima facie case of medical malpractice.
2. Delay while
en route to hospital
Claimant established that while en route to the hospital the correction
officers transporting him made two personal stops, namely at a local bank to
cash checks and at McDonald's for a takeout
Claimant contends this conduct was in violation of DOCS Directive #4901 relative
to medical transports which states, in pertinent part, that "the officer in
charge shall proceed with all possible haste" and that "it is not advisable that
any stops be made during the trip." (DOCS Directive #4901 IV [F] & I).
The issue of transport is one of negligence rather than medical malpractice
since the judgment of medical professionals is not at issue. The Court finds
the correction officers did make the alleged stops, but Claimant failed to show
that any delay proximately caused his injuries or aggravated the same. As such,
the Court cannot find from this record that the actions of the correction
officers amounted to negligence. Additionally, Claimant's contention that he
was injured by exposure to second hand smoke during the short time he was in the
custody of these correction officers is simply without merit.
Finally, to the extent this Claim pleaded a cause of action for deliberate
indifference, Claimant has failed to prove a prima facie case. "An inadvertent
failure to provide medical care or the commission of negligence in diagnosis and
treatment by a prison physician or medical personnel will not entitle [claimant]
to relief [citation omitted]" and does not constitute a claim for deliberate
Matter of Ronson v Commissioner of Correction, State of N. Y.
, 112 AD2d
In view of the foregoing, Claim Nos. 95572 & 96053 are hereby
ENTER JUDGMENTS ACCORDINGLY.
July 7, 2000
HON. FERRIS D. LEBOUS
Judge of the Court of Claims
Claim No. 95572 also contained another cause of action alleging injuries from a
fall in the Facility shower area but that cause of action was previously
dismissed. (Johnson v State of New York
, Ct Cl., filed June 30, 1997,
Patti, J., Claim No. 95572, Motion No. M-55137).
In fact, Claimant did file an inmate grievance after this accident and training
was provided. (Cl. Exs. 4 & 5).
Unless otherwise indicated, all quotations are from the Court's trial
It is well-settled that medical malpractice is involved, rather than simple
negligence, when a claim involves "[a] negligent act or omission...that
constitutes medical treatment or bears a substantial relationship to the
rendition of medical treatment...." (Bleiler v Bodnar
, 65 NY2d 65, 72).
Stated another way, an action may be based upon simple negligence in cases where
the alleged negligent act may be readily determined by the trier of fact upon
common knowledge (Coursen v New York Hospital-Cornell Med. Center
AD2d 254, 256), whereas if it is the treatment received by the patient that is
in issue a claimant must establish that the medical professional involved either
did not possess or did not use reasonable care in applying the knowledge and
skill ordinarily possessed in the field to establish medical malpractice.
(Hale v State of New York
, 53 AD2d 1025, lv denied
40 NY2d 804).
Claimant's pre-trial motion seeking the issuance of numerous subpoenas for trial
did not contain a request for any Facility medical personnel or medical records.
(Johnson v State of New York
, Ct Cl., Lebous, J., May 3, 2000, Claim Nos.
95572 & 96053, Motion No. M-61615).
Parenthetically, it is noted that this Court's denial of Claimant's pre-trial
motion requesting subpoenas for "Medical Physician Dichario" and Ray Glen, both
alleged to be doctors at St. Luke's Hospital did not prevent Claimant from
meeting his burden. (Johnson v State of New York
, Ct Cl., Lebous, J.,
May 3, 2000, Claim Nos. 95572 & 96053, Motion No. M-61615). Claimant sought
Ray Glen to testify on "admittance and treatment" at St. Luke's Hospital and Mr.
Dichario with respect to his observations that the correction officers had food
in the emergency room. Claimant did not proffer that either witness was going
to testify that any delay aggravated his injuries nor could this Court have
compelled either individual to volunteer such expert opinion testimony in any
event. Furthermore, Claimant related both of these witnesses to the delay while
en route to the hospital rather than to the alleged delay relating to his care
at the Facility infirmary.
Although not offered at trial, discovery in this case includes an internal DOCS
report in which it was determined that these stops did, in fact, occur and added
about ten minutes onto the trip to the hospital.