New York State Court of Claims

New York State Court of Claims

HODGE v. THE STATE OF NEW YORK, #2000-019-020, Claim Nos. 96265,99031


Court dismissed Claims for medical malpractice and/or negligence, negligent infliction of emotional distress for being housed with known enemies, and disclosure of confidential medical information based upon Claimant's failure to establish prima facie case.

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: Saul Aronson, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 5, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, Martin Hodge, a
pro se inmate, brings two claims against the State of New York. Claim No. 96265 alleges, among other things, medical negligence and/or medical malpractice, as well as mental anguish for being housed with known enemies. Claim No. 99031 alleges violations by the State of Claimant's right to confidentiality in a physician/patient relationship. These Claims were tried at the Sullivan Correctional Facility on June 13, 2000, and this Decision addresses the issue of liability only in relation to both Claims.
I. abClaim No. 96265
Medical Negligence/Malpractice

This cause of action pleads both simple negligence and medical malpractice. Simple negligence is the appropriate theory to pursue when the alleged negligent act or omission is readily determinable by the trier of fact based on common knowledge. (
Coursen v New York Hospital-Cornell Med. Center., 114 AD2d 254 [leaving postoperative patient unattended]). However, if it is the treatment received by the patient that is in issue, the case is more appropriately premised upon the more particularized theory of medical malpractice. (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). It is well-settled that the State is obliged to provide inmates with reasonable and adequate medical treatment. (Rivers v State of New York, 159 AD2d 788, 789, lv denied 76 NY2d 701). A person asserting medical malpractice has the burden of proving a deviation or departure from accepted practice and evidence that such deviation was a proximate cause of the injury sustained. (Kennedy v Peninsula Hosp. Center, 135 AD2d 788). Moreover, a claimant must establish the medical provider either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. (Hale v State of New York, supra, 53 AD2d 1025, lv denied 40 NY2d 804).

Here, Claimant alleged various misdeeds by Facility medical personnel including, but not limited to, denial of outside referrals, denial of medical permits, denial of emergency sick call, and failure to treat his back pain. To the extent this claim is based upon allegations of medical malpractice arising from improper treatment, expert medical testimony is required. (
Macey v Hassam, 97 AD2d 919). To the contrary, the Court here has only Claimant's testimony and his health records to support his claim of medical malpractice as there was no competent medical evidence presented with respect to accepted standards of medical care.[1] The only medical testimony from any of Claimant's witnesses was that of Nurse Quartarone, but she testified solely as a fact witness and, in any event, would not have qualified as an expert witness. Nevertheless, the Court has reviewed the extensive medical records Claimant submitted into evidence. (Cl Exs. 1 & 6). Based upon a review of these records, it is clear that Claimant often complained of numerous and various ailments. However, Claimant's medical records are insufficient to support a cause of action for medical malpractice as they "[d]o not contain any medical statement that the defendant's acts constituted a deviation from accepted medical standards or were a competent producing cause of the [claimant's] injuries [citations omitted]." (Mosberg v Elahi, 176 AD2d 710, 712). In sum, in the absence of any testimony from a medical expert that the medical treatment Claimant received was improper, the Court has no proof from which it might have concluded that accepted standards of care were not met; that any medical provider that treated Claimant did not possess the requisite knowledge and skill; that any medical provider did not use reasonable care; or that any treatment rendered, or delay thereof, resulted in injury or exacerbated Claimant's condition. (Toth v Community Hospital at Glen Cove, 22 NY2d 255; Zi Guang v State of New York, 263 AD2d 745). As such, Claimant has failed to establish a prima facie case of medical malpractice.

Nor can the Court find from this record that the actions of the Facility medical care providers amounted to negligence. Despite the length of Claimant's testimony and various exhibits, the Claimant has failed to establish a
prima facie case. Accordingly, the State's motion to dismiss made at the conclusion of the trial is now granted and this portion of the Claim is dismissed.
B. ab
Mental anguish for being housed with known enemies
The second cause of action alleges mental anguish for being housed with known enemies. In this Court's view, this cause of action is best viewed as a claim for negligent or intentional infliction of emotional distress. To the extent this claim attempts to allege intentional infliction of emotional distress it is easily dispensed with since it is well-settled that such a claim does not stand against government bodies as a matter of public policy. (
Dillon v City of New York, 261 AD2d 34, 41). With respect to the portion of this cause of action alleging the negligent infliction of emotional distress, it too must fail. Claims of negligent infliction of emotional distress must be supported by proof of defendant's conduct that is "[s]o outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Dillon v City of New York, supra, 261 AD2d, at 41 citing Murphy v American Home Prods. Corp., 58 NY2d 293, 303). Although Claimant submitted proof tending to establish the fact that he was transferred into a facility in which one of his many known enemies was housed, Claimant failed to offer any proof from which this Court could find such a decision to be "atrocious".[2] Claimant did not testify as to whether he had any contact with this known enemy, Frank Caserta, at this facility after the transfer or, for that matter, at what point in time he even discovered that they were in the same facility. (Johnson v New York City Bd. of Educ., 270 AD2d 310). In fact, a review of the proof adduced at trial (Cl. Exs. 14 & 15) indicates that Caserta was transferred out of the facility around the same time that Claimant arrived. Even if there was an overlapping period of time when Claimant and Caserta were in the same facility, Claimant was housed in the hospital and therefore segregated from Caserta and the rest of the general population. Consequently, this Court finds Claimant's assertions of emotional distress to be remote and speculative at best. (Kaufman v Physical Measurements, 207 AD2d 595, 596). As such, Claimant has failed to establish a prima facie case for negligent infliction of emotional distress. Accordingly, the State's motion to dismiss made at the conclusion of the trial is now granted and this cause of action is hereby dismissed.
II. Claim No. 99031-Doctor-patient privilege
Claimant alleges violations of his confidential doctor-patient relationship with facility doctors because, among other things, non-medical officers and other inmates could overhear confidential medical conversations and sick call requests were routed through non-medical personnel. Unauthorized disclosure of certain confidential medical information may, in certain circumstances, give rise to a viable cause of action, but a cause of action does not necessarily exist for "[b]reach of privacy or of confidentiality, absent allegations of a physician's culpable conduct in the purported improper access to medical records or disclosure thereof [citations omitted]". (
Matter of V. v State of New York, 150 Misc 2d 156, 159). Department of Correctional Service regulations, however, do recognize that "[t]o the extent consistent with the safety and good order of the facility, staff shall respect an inmate's right to privacy during medical encounters and the confidential nature of communications between inmates and health care providers." (7 NYCRR 304.4). This regulation acknowledges that any such "[r]ight of confidentiality is less than absolute (see also, Doe v Roe, 93 Misc 2d 201, 214), and that, in order to be considered wrongful, and thus actionable, the disclosure must be without legal justification or excuse (MacDonald v Clinger [84 AD2d 482])." (Rea v Pardo, 132 AD2d 442, 445; emphasis added). In reviewing such justifications or excuses, the Court will "balance the competing interests at stake [citations omitted]." (Id., at 446). Assuming, arguendo, the Court were to accept Claimant's legal arguments and factual descriptions of the close proximity of non-medical personnel during medical examinations and the process by which a sick call slip is handled, this very same testimony and proof adduced at trial tends to show an underlying safety purpose behind each scenario. For instance, the presence of a correctional officer during an inmate medical evaluation and treatment by the medical staff has a clear legal justification, namely assurance of the safety of the staff. Claimant submitted no proof from which the Court might conclude that facility security did not warrant such sick call procedures. The Court will not substitute its judgment for that of the Department of Correctional Services in managing the "safety and good order" of its facility.

Claimant also alleges that facility personnel disclosed his condition of herpes zoster in response to third-party inmate grievances (inquiries) as to whether Claimant suffered from AIDS and/or the HIV virus.[3]
However, Claimant's allegations regarding disclosure of this medical information about him was unsupported by admissible, competent proof. Nurse Quartarone did not testify with respect to any such disclosures and neither the grievances nor responses, including the hearsay contained therein, ever corroborated such disclosure. The fact that Claimant was being treated differently by some inmates because he was believed, mistakenly, to be suffering from AIDS and/or the HIV virus, in and of itself, also fails to establish any wrongful disclosure of Claimant's actual medical condition by the Defendant to third parties. As such, Claimant has failed to establish a prima facie case and this Claim must be dismissed. Accordingly, the State's motion to dismiss made at the conclusion of the trial is now granted and this Claim is hereby dismissed.

In view of the foregoing, Claim Nos. 96265 and 99031 are DISMISSED in their entirety. All motions not heretofore ruled upon are now denied.


September 5, 2000
Binghamton, New York

Judge of the Court of Claims

Prior to trial Claimant sought the issuance of subpoenas to compel the production of five individuals at trial. This Court granted three out of the five requests, namely Paul Annetts, Deputy Superintendent of Security at Shawangunk Correctional Facility; J. Quartarone, registered nurse at Shawangunk; and Mr. Pursino, Correctional Officer at Green Haven Correctional Facility. (Hodge v State of New York, Ct Cl., May 19, 2000, Lebous, J., Claim Nos. 96265 & 99031; Motion No. M-61622). The Court denied his requests for Mr. Wilhelm, Deputy Commissioner of the State Correctional Services; and Dr. Valencia, treating psychiatrist at Coxsackie Correctional Facility. Claimant's request for Dr. Valencia was framed specifically in relation to the cause of action based on mental anguish for being housed with known enemies and not to his medical malpractice/negligence cause of action.
While there certainly are Department of Correctional Service rules and regulations, among others, addressing the need for enemy checks [7 NYCRR 1000.6[a][1]); keeping a list of known enemies [9 NYCRR 7621.6]; and discouraging bunking known enemies together [7 NYCRR 1701.5], none of these rules or regulations can prevent known enemies from ever being housed in the same facility, especially when, as here, an inmate has such numerous known enemies. This is not to say, however, that in the event known enemies are housed within the same facility that the State could not be held liable for a physical assault when, among other things, it failed to provide reasonable protection. (Sebastiano v State of New York, 112 AD2d 562; Littlejohn v State of New York, 218 AD2d 833; Huertas v State of New York, 84 AD2d 650).
At no point did Claimant testify he actually has AIDS and/or the HIV virus. As such, Article 27-F of the Public Health Law is inapplicable.