New York State Court of Claims

New York State Court of Claims

ROGERS v. THE STATE OF NEW YORK, #2000-028-0004, Claim No. 97345


Synopsis


Claimant failed to prove that a physician who was removing calluses from his foot caused two unwarranted cuts or that his behavior violated the duty of medical professionals to possess requisite knowledge and skills, to provide ordinary and reasonable care and treatment, and to use his or her best judgment in giving care.

Case Information

UID:
2000-028-0004
Claimant(s):
JAMES ROGERS The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
ROGERS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97345
Motion number(s):

Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
JAMES ROGERS, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kevan J. Acton, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 29, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This claim arose on October 8, 1997 at Greene Correctional Facility, when claimant's

feet were cut during a podiatric procedure. Claimant testified that calluses were removed from
both feet by the physician through the use of a scalpel. Apparently, the claimant was unable to walk on his feet the day the procedure was performed and the following day, as well. Finally,
he testified that he wore special boots during his recovery period, since it was too painful to wear
the State issued boots.
Medical professionals owe to their patients three basic duties: (1) the duty to possess the requisite knowledge and skills possessed by the average member of their profession; (2) the duty to use ordinary and reasonable care in applying such professional knowledge; and (3) the duty to use his/her best judgment in the exercise of such knowledge (
Pike v Honsinger, 155 NY 201; Littlejohn v State of New York, 87 AD2d 951; Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804; Jacques v State of New York, 127 Misc 2d 769). More than a mere honest error in professional judgment is required for liability (Schrempf v State of New York, 66 NY2d 289; Pigno v Bunim, 43 AD2d 718, affd 35 NY2d 841). It is not always necessary for a claimant or plaintiff to present the testimony of a medical expert to establish negligence, where evaluation of the alleged negligence falls within the experience or knowledge of lay persons (Hammer v Rosen, 7 NY2d 376; Meiselman v Crown Heights Hospital, 285 NY 389, 396). There must, however, be evidence on which to base a finding of negligence.
The procedure being carried out on claimant involved removal of tissue with a sharp instrument, and it necessarily required some period of time for the remaining tissue to heal. While the Court does not doubt that claimant experienced some degree of discomfort in connection with this procedure, there was no credible evidence from which it can be concluded that the trauma to his feet and the consequent period of recovery was the result of negligence on the part of the podiatrist or, indeed, was anything other than what would normally be expected with the removal of calluses.

The State's motion to dismiss the claim for failure to make a
prima facie case of negligence is granted, and the claim dismissed.
Let judgment be entered accordingly.

September 29, 2000
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims