Defendant's motion to dismiss the consolidated claim made at the close of
claimant's proof at trial for failure to make out a
case of medical malpractice is
The claim, which was consolidated from two separately filed claims (Claim
Nos. 98997 and 99322) by decision and order of this Court dated March 10, 2000,
sought to recover damages for the alleged medical malpractice of Department of
Correctional Services (DOCS) employees which occurred at Oneida Correctional
Facility (Oneida) from May 15, 1998 through August 25,
. Claim No. 98997 was filed on September 21, 1998 and alleges that a facility
doctor ordered an immediate general surgery consult for claimant's lower right
groin (inguinal) hernia and that the surgery recommended by the consulting
physician on July 16, 1998 was not performed by August 25, 1998. Claim No.
99322 was filed on November 18, 1998 and alleges that Dr. Daniel Cooley, a
physician employed by DOCS at Oneida, failed to detect claimant's hernia during
an examination of claimant on May 15, 1998.
Claimant's ambulatory health records, which were offered and admitted into
evidence at trial without objection, demonstrate that on May 11, 1998 claimant
attended sick call complaining of pain in his right groin over a three week
period, the presence of a large lump which was numb and that claimant
experienced a pull when he exercised. The report indicates that claimant was
scheduled to see a doctor for evaluation. The following record entry is dated
May 13, 1998 and states right groin discomfort for one week, no known injury, no
hernia, normal exam. Motrin 600 was prescribed. This report bears the
signature of one identified only as "Cooley" with provider number 104. The
records further demonstrate that claimant reported to sick call on May 19, 1998
continuing to complain of right groin pain and discomfort including burning and
the presence of a lump. An examination by RN Schaller on that date, however,
likewise failed to detect any swelling. Claimant next reported to sick call on
June 4, 1998 continuing to complain of right groin pain which he reported was
getting worse. He was examined on that date by Dr. Robert Lowenstein who
reported a right inguinal hernia of moderate size and ordered a general surgery
consult. A June 8, 1998 entry indicates claimant was issued a permit for no
heavy lifting until the hernia was repaired.
A surgical consultation took place on July 16, 1998 by Dr. John Halverson at
the request of Dr. Lowenstein. Dr. Halverson recommended surgical repair with
the urgency being described as "soon." The next medical report submitted at
trial was dated June 2, 1999 and noted the need for a pre-operative
electrocardiogram prior to a scheduled elective right inguinal hernia repair. A
subsequent consultation report dated June 17, 1999 appears to contain post
operative instructions but does indicate a scheduled surgery date or indicate
that the surgery had already occurred. Claimant testified at trial that the
hernia repair surgery was, in fact, performed in June 1999 and the claimant's
ambulatory health records for August 13 and 24, 1999 support that allegation.
Claimant's post-operative period appears to have been uneventful. Claimant's
medical records provided no explanation for the eleven month delay between Dr.
Halverson's recommendation for surgical repair on July 16, 1998 and claimant's
surgery in June 1999. Claimant testified at trial that the staff at Oneida told
him they were waiting for the surgery to be approved but he neither identified
who provided that information nor stated when he was so advised.
At the close of claimant's proof defendant's counsel moved to dismiss the claim
for claimant's failure to make out a
case since he failed to offer any expert testimony as to the
alleged acts of medical malpractice. The Court reserved decision on the motion
which will now be addressed.
Whether a claim is couched in terms of negligence or medical malpractice, if
issues involve conditions beyond the common knowledge of a fact finder expert
medical proof will be required to sustain a recovery (
Duffen v State of New York
, 245 AD2d 653). The issues raised at trial by
claimant's proof clearly fall outside the common knowledge of the Court. While
the proof established there was an eleven month delay between the time of
claimant's surgical consultation with Dr. Halverson and the date the surgery was
actually performed no proof was offered as to what, if any, deleterious effect
such delay had on the claimant's health for which he should be compensated. So
too, while the medical records demonstrate that neither Dr. Cooley nor Nurse
Schaller located or detected claimant's hernia during their separate
examinations on May 13, 1998 and May 19, 1998 respectively claimant offered no
proof that such failure on the part of either health care provider was a
deviation from accepted standards of medical care. Only expert proof could
establish the necessary legal causation required to impose liability and
demonstrate a deviation from good and accepted standards of medical care
, Rossi v Arnot Ogden Med. Ctr.
, 268 AD2d 916; Spicer v
Community Family Planning Counsel Health Ctr.
, 272 AD2d 317; Lyons v
, 252 AD2d 516).
Claimant's failure to offer medical proof establishing both a deviation from
accepted medical standards and that harm resulted from the alleged deviation
requires the granting of the defendant's dismissal motion.
The Clerk shall enter judgment in accord with this decision.