New York State Court of Claims

New York State Court of Claims

BENNETT v. THE STATE OF NEW YORK, #2000-029-019, Claim No. 95813


Prisoner - alleged improper medical care - prescription of shampoo, claimant burned by shampoo. Court finds no liability as claimant received proper instructions in use of shampoo.

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:
Rohan Bennett, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Michael Rosas, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 26, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This claim, by a former prisoner appearing
pro se, alleges defendant's medical personnel at Sing Sing Correctional Facility (hereinafter Sing Sing) rendered negligent medical care to claimant. The trial of this claim was held on September 12, 2000.
Claimant alleges that: (1) on December 2, 1996 he contracted pubic lice because of unsanitary showers and bedding at Sing Sing; (2) he went to the facility infirmary and medical staff gave him a strong chemical shampoo with incomplete instructions; (3) as a result of receiving improper usage instructions, he overused the shampoo and sustained burns to his private parts. Claimant submitted as Exhibit 1 photocopies of three documents, two of which appear to be prescriptions. One prescription is for Kivell shampoo and the other recites that claimant's bed linens and mattress are to be removed and cleaned in HOT water. It further reports that claimant is to shower daily for three days and that he needs fresh linens. The third document purports to be a photocopy of directions for the use of Vitamin E cream prescribed to claimant. Claimant stated that the cream was prescribed after he was burned by the shampoo.

To maintain an action for injuries sustained while under the care and control of a medical practitioner, a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice (Hale v State of New York, 53AD2d 1025, lv den 40 NY2d 804). The theory of simple negligence is restricted to those cases where the alleged negligent act is readily determinable by the trier of the facts on common knowledge. However, where the treatment received by the patient is an issue, the more specialized theory of medical malpractice must be followed (see, Twitchell v MacKay, 78 AD2d 125; Hale v State of New York, supra).
Whether the claim is considered to assert a cause of action sounding in negligence or one for malpractice, there cannot be serious doubt that the issue of whether and to what extent the medication contributed to claimant's condition is not a matter of common knowledge which a fact finder could decide in the absence of expert testimony (
Duffen v State of New York, 245 AD2d 653, lv den 91 NY2d 810; Armstrong v State of New York, 214 AD2d 812, lv den 86 NY2d 702).
Here, claimant is not asserting a cause of action upon a theory of ordinary negligence, but one upon a theory of medical malpractice. His complaint relates to the
adequacy and the appropriateness of the instructions he alleged he received, which is not "readily determinable by this Court". As a result, the burden was on claimant to establish that the care and treatment afforded him by the State at the correctional facility constituted a deviation from the applicable standard of care. This requires proof that the instructions he received regarding the use of the shampoo were improper, i.e., that the medical personnel did not use care in the application of their specialized knowledge or skill (Hale v State of New York, supra; Pike v Honsinger, 155 NY 201; Riley v Wieman, 137 AD2d 309). The burden was also on claimant to establish that the alleged negligence was a proximate cause of his damages, i.e., that it was a substantial factor in causing or exacerbating his injuries (Kennedy v Peninsula Hosp. Center, 135 AD2d 788; Koster v Greenberg, 120 AD2d 644).
The State has an obligation to provide ordinary and appropriate medical treatment to those inmates in its institutions (
Gordon v City of New York, 120 AD2d 562, affd 70 NY2d 839). As this is a medical malpractice action alleging improper treatment, expert medical testimony is required (Morgan v State of New York, 40 AD2d 891; see also, Macey v Hassam, 97 AD2d 919). Claimant did not present any expert testimony that the instructions he received with his medication were improper.
The State submitted into evidence a copy of a portion of claimant's Department of Correctional Services Ambulatory Health Record for the period from November 26, 1996 through December 6, 1996 (Exh. A). The record establishes that: (1) claimant arrived at Sing Sing on November 26, 1996 in good physical condition and denied illness or injury; (2) on December 2, 1996 he complained of pubic itch and again on that same day he complained of pubic lice, which were visualized by the staff. Claimant was given a pass to shower daily for three days and his linens and mattress were to be removed and cleaned. The record reports, "Kivell shampoo x 1" (Exh. A, unnumbered Pg. 3); (3) on December 6, 1996 claimant complained his skin was burned from using Kivell shampoo. A member of the medical staff recorded claimant "was told to use shampoo
1x and shower pass was for 3 days. Inmate misunderstood and used the shampoo for 3 days" (Exh. A, unnumbered Pg. 3). Based upon these records, this Court cannot find that claimant received improper or inadequate instructions and therefore, there is no reason to inquire as to the medical appropriateness of same. Thus, the Court finds that no prima facie case for medical malpractice has been established by claimant.
Accordingly, the State's motion to dismiss on the basis claimant failed to prove a prima facie claim, upon which decision was reserved, is now granted and the claim is hereby dismissed. All other motions upon which the Court reserved decision are now denied as moot. The Chief Clerk is directed to enter judgment accordingly.

September 26, 2000
White Plains, New York

Judge of the Court of Claims