New York State Court of Claims

New York State Court of Claims

HEMMY v. New York, #2000-019-505, Claim No. 98410, Motion No. M-60833


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
March 14, 2000

Official citation:

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See also (multicaptioned case)


The defendant State of New York (hereinafter "State") moves for summary judgment pursuant to CPLR § 3212.

The Court has considered the following papers in connection with this motion:

  1. Claim, filed June 5, 1998.
  2. Notice of Motion No. M-60833, dated November 30, 1999 and filed December 3, 1999.
  1. Affirmation of Carol A. Cocchiola, AAG, in support of motion, dated November 30, 1999, with attached exhibits.
  2. Affidavit of Cheng Yin, M.D., in support of motion, sworn to November 22, 1999.
  3. Affidavit of David K. Austin, M.D., in support of motion, sworn to November 30, 1999.
  4. "VERIFIED REPLY" of Paul Edward Hemmy, Jr., in opposition to motion, sworn to January 30, 2000, with attached exhibits.


Claimant alleges medical malpractice and negligence against the State as the result of medical treatment provided by David K. Austin, M.D. and Cheng Yin, M.D. to Claimant's right knee while he was incarcerated at the Elmira Correctional Facility (hereinafter "Facility"). Claimant's story begins on June 18, 1996 when he consulted the medical staff at the Facility due to swelling and severe pain in his right knee.[1] Claimant was initially seen by a Dr. Kureshi, a physician no longer employed at the Facility, from June 1996 until December 1996. During 1996, Claimant was prescribed anti-inflammatories, ice, rest, and a knee brace and diagnosed with fluid build-up on the knee, knee sprain, and tendinitis of the hamstring. The current Facility physician, Cheng Yin, M.D., examined Claimant in December 1996 and performed a McMurray test [2] and ordered an X-ray, both resulting in negative findings. From January 1997 to April 1997 Claimant did not seek treatment for knee pain. In June 1997, Dr. Yin performed another McMurray test with negative results, but noted some swelling. At this juncture, Dr. Yin requested a consultation with an orthopedic surgeon, Dr. Austin. On July 11, 1997, Claimant underwent magnetic resonating imaging ("MRI") at Arnot-Ogden Hospital upon the orders of Dr. Austin. According to Dr. Austin, the MRI "[r]eflected a questionable vertical tear to the anterior horn of the lateral meniscus." (Affidavit of David K. Austin, M.D., ¶ 3). On August 25, 1997, Dr. Austin indicates he ordered surgery to "[a]ddress the tentative diagnosis made at that time of a lateral meniscal tear. Such diagnoses can many times only be confirmed or ruled out through surgery." (Affidavit of David K. Austin, M.D., ¶ 4). A right knee arthroscopy was performed on October 21, 1997 at the Corning Hospital. Dr. Austin performed a "lateral mensical debridement" when surgery revealed a "frayed" lateral meniscus rather than a "displacable tear". (Affidavit of David K. Austin, M.D., ¶ 5). In addition, surgery also unveiled a partial detachment of the anterior cruciate ligament ("ACL") from the femur without instability which did not warrant ACL reconstruction. (Affidavit of David K. Austin, M.D., ¶ 8).

After surgery, Claimant ordered his medical records from Corning Hospital because he was unsatisfied with his recovery progress. Claimant contends it was only by reviewing the Corning Hospital records that he learned the surgery had revealed an injury to his right ACL, rather than a lateral meniscus tear. Claimant also points out a typographical error in the operative report that states surgery was performed on his left knee, not his right knee.[3] Generally, Claimant describes the medical malpractice in terms of Drs. Austin and Yin diagnosing a lateral meniscus tear rather than a partial detachment of the ACL, performing unnecessary surgery (the right knee arthroscopy), failing to timely treat the ACL injury, and failing to inform him of the correct diagnosis after surgery. Claimant alleges his resulting injuries are incessant knee pain and his inability to participate in activities which he once did, namely sports.


Generally, on a motion for summary judgment, the moving party must present evidentiary facts to establish that party's right to judgment as a matter of law, upon which the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). If the moving party fails to satisfy its burden, the motion must be denied regardless of the adequacy of the opposing papers. (Alvarez v Prospect Hosp., 68 NY2d 320, 324). More specifically, on a summary judgment motion by a defendant in a medical malpractice case such as this "[i]t is incumbent on the moving defendant to establish prima facie, usually via an expert affidavit, that he did not engage in any departure from accepted practice or that any departure by him was not a proximate cause of the [claimant's] injuries." (Moore & Gaier, Summary Judgment Motions-Part I, NYLJ, February 2, 1999, at 3, col 3). A defendant's success in meeting its burden is measured by determining whether the allegations of the pleadings are adequately refuted which, by definition, is reflective of the level of detail contained in each claim. (Id.). Whereupon, the burden shifts to the opposing party to "[s]ubmit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating [claimant] so as to demonstrate the existence of a triable issue of fact [citations omitted]." (Alvarez v Prospect Hosp., supra, 68 NY2d, at 324-325).


Accordingly, our review must start with a closer look at the pleadings,[4] since the success of the State's motion is contingent upon whether it adequately refutes the allegations contained therein. This Claim, consisting of 61 numbered paragraphs, contains by and large a recitation of Claimant's numerous medical appointments from June 1996 through early 1998. The actual allegations of medical malpractice, however, are limited and essentially charge Claimant was "improperly diagnosed" as suffering from a lateral meniscus tear, a failure to timely treat his actual injury of an ACL tear, as well as the failure to inform Claimant of the surgical findings. (Claim, ¶ ¶ 27, 42 [p 8], & 56). However, the Claim does not provide, among other things, any details on how the State is alleged to have actually departed from accepted practice (e.g., what the State should have done to distinguish between a possible lateral meniscus tear versus an ACL tear or what other diagnostic procedures the State should have used) or how any such departure was the proximate cause of his injuries (e.g., how the alleged misdiagnosis exacerbated the ACL injury). In this Court's view, despite the length of this Claim, it may fairly be characterized as vague in relation to allegations of the State's departure from accepted practice and the issue of proximate cause. As such, the State's corresponding burden to refute the allegations is not as high as it would have been if the pleadings were more specific. (Moore & Gaier, Summary Judgment Motions-Part I, NYLJ, February 2, 1999, at 9, col 1; Alvarez v Prospect Hosp., supra, 68 NY2d, at 325-326). In other words, the State cannot be held to a high standard of refuting specific allegations of medical malpractice when specific allegations of medical malpractice are not contained in the pleadings in the first instance. Keeping this in mind, a review of the proof submitted by the State in support of its motion is in order.

In this Court's view, the physicians relate a gradual process of evaluating Claimant's symptoms and ordering increasingly advanced and invasive diagnostic methods (from rest/ice/anti-inflammatories to physical manipulation tests to X-rays to an MRI and, finally, arthroscopic surgery). While the degree of specificity contained in the physician's affidavits is not as high as it could have been, we must recall that the level of detail in these affidavits is understandably reflective of the vaguely stated Claim. Thus, the doctors affidavits incorporated specific references to Claimant's allegations of malpractice to the extent possible. For example, Claimant charged he was "improperly diagnosed" to which the State responded that the MRI "[s]uggested a cartilage tear, and did not indicate a problem with the anterior cruciate ligament (ACL)". (Affidavit of David K. Austin, M.D., ¶ 3).[5] Claimant's contention in his Notice of Intention that the right knee arthroscopy was "unnecessary surgery" is negated by the Dr. Austin's statement that possible meniscus tears are often only confirmed or ruled out by such surgery. (Affidavit of David K. Austin, M.D., ¶ 4). In addition, Claimant alleged he was "totally unaware" of his ACL injury until he read the hospital records to which Dr. Austin averred "[a]fter the surgery, I shared with Mr. Hemmy the observations I made during the procedure, what I did during surgery, and the results." (Affidavit of David K. Austin, M.D., ¶ 9). Furthermore, Claimant alleged he suffered "[c]onstant pain and discomfort and must wear a leg-brace for support" due to the improper diagnosis and untimely treatment, but both Dr. Yin and Dr. Austin aver that when they examined Claimant on several occasions after surgery that his condition and recovery progress was normal. In this Court's view, the State adequately responded to the limited allegations of medical malpractice contained in this Claim and any lack of more specific factual references must be traced back to the vaguely stated Claim in the first instance. As such, this Court finds the State has met its burden, thereby shifting the burden to Claimant to present evidence that there was a departure from accepted practice or that any such departure was the proximate cause of the injuries.

Claimant's opposing papers consist only of his personal affidavit and various medical records, but he does not submit an expert's affidavit.[6] In order to defeat the State's motion for summary judgment something more is required other than Claimant's conjecture that the State's acts and/or omissions amounted to medical malpractice. From this record, it is clear Claimant has not consulted an expert on this matter,[7] but rather has based his allegations of medical malpractice on, among other things, the fact his admitting diagnosis was changed after surgery, that he continued to suffer knee pain after the surgery, and on an admitted typographical error in the operative report. Claimant's speculation that his treatment could/should have been different is not sufficient to sustain his burden of establishing the treatment rendered departed from the standard level of care or that any such departure was the proximate cause of his injuries. In sum, Claimant has offered absolutely no evidentiary proof to demonstrate the existence of a triable issue of fact that medical malpractice has occurred.

Accordingly, in light of the foregoing, it is ORDERED that the State's motion for summary judgment, Motion No. M-60833, is GRANTED and Claim No. 98410 is DISMISSED.

March 14, 2000
Binghamton, New York

Judge of the Court of Claims

[1]The State is not alleged to be responsible for the original knee injury.
[2]A McMurray test refers to a physical "rotation of the tibia on the femur to determine injury to meniscal structures." (Stedman's Medical Dictionary 1780 [26th ed]).
[3]At no point does Claimant argue that surgery was actually performed on his left knee, rather he argues Dr. Austin's general lack of medical competence is evidenced by the fact he signed an operative report containing a typographical error. (Claim, ¶ 42, p 9).
[4]The Court's file contains the State's Demand for a Bill of Particulars, but no response from Claimant.
[5]The MRI test report confirms that this diagnosis or finding was listed as "questionable". (Exhibit B to Affidavit of Carol A. Cocchiola, AAG).
[6]The Claim alleges both ordinary negligence and medical malpractice. (Claim, ¶ 2). The State argues that this claim sounds only in medical malpractice. Claimant argues that there is also an element of ordinary negligence because "[i]t can be deduced on common knowledge alone that a complaint of pain over a span of one year would warrant more than aspirin." (Verified Reply, ¶ Third [D]). There is no doubt here but that the core of Claimant's allegations focus on the medical treatment, or lack thereof, received which requires expert proof. (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804).
[7]Claimant submitted an "Expert Witness List" on January 31, 2000 which lists various Facility physicians and nurses and the physical therapist from St. Joseph's Hospital.