New York State Court of Claims

New York State Court of Claims

MOORE v. THE STATE OF NEW YORK, #2000-028-101521, Claim No. 100767, Motion No. M-62030


Synopsis


Pro se inmate's request for an order directing prison officials to transport him to an outside physician, whom he hopes to retain as an expert witness in a medical malpractice action, is denied as premature, with leave to renew if he secures the services of a physician and is at that point denied transportation to the examination.

Case Information

UID:
2000-028-101521
Claimant(s):
DWAYNE W. MOORE
Claimant short name:
MOORE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100767
Motion number(s):
M-62030
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
DWAYNE W. MOORE, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Glenn C. King, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 1, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on claimant's motion for an order directing prison officials to transport him to an examination by an outside physician.

Notice of Motion and Supporting Affidavit of Dwayne L. Moore, filed July 17, 2000 ("Moore affidavit").


Affirmation in Opposition of Glenn C. King, Esq., AAG, filed September 1, 2000 ("King affirmation")


This is an action alleging malpractice and negligence on the part of the medical staff and employees at Coxsackie Correctional Facility. By this motion claimant Dwayne W. Moore requests the Court to "order the Chief Medical officers and Superintendent of Southport Correctional Facility and Albany, to take the claimant to see his private doctor to examine him and to review the medical record's to testify at claimant's trial, to provide expert testimony of negligent care the defendant has provided" (Notice of Motion). Claimant indicates that he is prepared and willing to pay the doctor's fees and requests that he be transported to see Dr. William Clack, located in Elmira, New York.

Although claimant alleges that he cannot be transported for such a medical visit without a court order and refers to a letter from the Superintendent of Southport Correctional Facility (Moore Affidavit, attachment), the letter does not make that statement. More significantly, counsel for defendant does not indicate that the State would require such an order. Defense counsel understands, as does this Court, that a claimant will be unlikely to choose a doctor within the State prison system to provide expert testimony in an action against a facility medical staff (King affirmation, §3).

Claimant would be well-advised to heed the suggestion of defense counsel to obtain a commitment from Dr. Clack or any other physician, that he will be willing to examine claimant and to testify at trial of this action. If there is such a commitment, it is possible that representatives of the Department of Law (DOL) and the Department of Correctional Services (DOCS) would voluntarily arrange for the necessary transportation. If a court order is in fact needed, this Court requires that it be presented with evidence of such a commitment before the issuance of such order would be considered.

Both the Court and the opposing party are well aware of the logistical difficulties facing a prison inmate who seeks to prosecute an action that, in most instances, will require expert testimony. There is no reason, at this point, to doubt that both DOL and DOCS will provide reasonable assistance in allowing the inmate to communicate and be examined by his expert. Certainly if they do not provide such assistance, the Court would be willing to order it. But there must first be an expert. Claimant's first step should be to secure the services of a physician willing to examine and testify for him, to inform DOL and/or DOCS that he has done so and request transportation to the examination. Only then, if that reasonable request is denied, should there be a need for motion practice requesting the Court's assistance.

Claimant's motion is denied, with leave to renew if necessary once claimant has secured a physician's agreement to serve as his expert.


November 1, 2000
Albany, New York

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