This medical malpractice claim alleges injuries as a result of Defendant's
failure to immediately provide adequate medical care to Claimant, an inmate,
after he injured himself on November 25, 1998 at the Mt. McGregor Correctional
Facility (Mt. McGregor).
As background, the evidence at trial reflected that on January 15, 1997,
Claimant was incarcerated for a period of one to three years following his
conviction for Aggravated Unlicenced Operation. He began his sentence at
Downstate Correctional Facility and in late January, 1997 was assigned to Mt.
McGregor, a medium/minimum security prison. Claimant was an insulin dependent
Claimant provided the following undisputed account of the events resulting in
his initial injury which led to his medical care by State employees. On
Wednesday, November 25, 1998, between 4:30 and 5:00 p.m., Claimant was ascending
the basement stairs at Mt. McGregor when he caught his foot on the edge of a
step, which caused him to stumble up, then back down, "landing wrong on [his
Claimant used the railing to
hobble up the stairs to his room on the first floor. He told his roommate what
had just happened and the infirmary was notified.
Claimant was transported by van to the infirmary where he was treated by a
nurse. His immediate care consisted of an Ace bandage wrap (later described as
a "Jones Dressing"), Motrin and confinement to the Mt. McGregor infirmary. He
received instructions to elevate the foot, apply ice and stay off of the foot.
He was provided with crutches. Although the facility had x-ray equipment, and he
asked about an x-ray, none was provided. Claimant testified that at the time
of his first visit to the infirmary, he "felt a little throbbing in his foot".
He further explained that as a diabetic he "doesn't feel pain in his feet the
same as others without diabetes would." Claimant stated that he "was not
concerned about standing upon it" and acknowledged that between the date of
injury and the date x-rays were taken, i.e. five days, he was told on three or
more occasions not to walk on it.
Claimant explained that in the course of his day, he needed to stand or walk
on the injured foot to retrieve his meals and to open doors. On November 30,
1998, Claimant was x-rayed at Mt. McGregor and sent to Albany Medical Center
Hospital (AMCH) for orthopedic consultation that same day.
Claimant remained at AMCH through December 6, 1998 when he was discharged to
Mt. McGregor. While at AMCH, he underwent an open reduction and internal
fixation of the injured left foot and was casted. Twice in the month of December
Claimant did not go for follow-up orthopedic care outside Mt. McGregor because
of his alleged difficulties ambulating while shackled.
Dr. Virgilio C. Victoriano, a board-certified orthopedic surgeon since 1974,
testified for the Claimant.
reviewed the medical records from the correctional facility, Albany Medical
Center Hospital (AMCH) records, records of Dr. Jabbour and Dr. Bilfield; the
Claimant's x-rays and unspecified deposition transcripts. However, he did not
examine Claimant. Dr. Victoriano testified that there was an initial deviation
from accepted medical standards based upon the delay in x-raying the left foot
from the date of injury until November 30. He opined that an x-ray should have
been obtained either "immediately or shortly thereafter" even for a person
Following the x-ray of November 30, which revealed a Lisfranc fracture,
claimant was transported to AMCH where, on December 6, he underwent surgery to
stabilize the fracture. Upon cross-examination, Dr. Victoriano testified that a
Lisfranc fracture is an unstable fracture and because of its instability, there
is a probability that the fracture will not heal properly, regardless of whether
the fracture is treated by open or closed reduction. Dr. Victoriano opined that
a second deviation from accepted medical standards occurred when claimant failed
to receive follow-up care after being discharged from AMCH. Finally, he opined
a third deviation was the failure to properly inform Claimant of his options
upon learning, post surgery, that the fracture had again become displaced.
Claimant subsequently underwent a second surgery following his parole from
prison. Dr. Victoriano acknowledged that Claimant's weight-bearing activities,
both before casting and surgery and after, was detrimental to the healing
Dr. Michael Crook, Facility Health Service Director at Mt. McGregor, Mary J.
Eldridge, R.N. at Mt. McGregor and Dr. John E. Cunningham, II , (Cunningham)
Regional Medical Director for the New York State DOCS, each testified on behalf
Nurse Eldridge testified that she was the nurse who saw Claimant in the Mt.
McGregor clinic on November 25, 1998 at approximately 7:00 p.m. for an emergency
sick call. Her examination of the foot revealed swelling on the top left upper
side with accompanying pain. She contacted Dr. Crook for a course of treatment.
Claimant was to be admitted to the infirmary and treated with ice, bed rest,
elevation, an Ace bandage wrap, ibuprofen and non-weight bearing until he was
seen for an x-ray. ((Exhibit 22, p. 22). Nurse Eldridge testified that Dr.
Crook's decision to wait until Monday for an x-ray did not surprise her. She
testified Claimant was directed over and over to remain non-weight bearing until
his foot was x-rayed to rule out a fracture.
Dr. Cunningham has been employed by DOCS since 1993 and is Board certified in
Internal Medicine. Dr. Cunningham testified that a facility nurse contacted him
on the date of the injury. Although he could not remember precisely what
information was provided he ordered an x-ray as soon as possible to rule out a
fracture and ordered ice, elevation, immobilization and for Claimant to "stay
On November 27, 1997 he examined the
Claimant and noted swelling and bruising and that there was a "question of a
fractured metatarsal first or second." Dr. Cunningham testified that the result
of the x-ray would not influence his treatment of the injury as the Claimant was
already being treated as if he had a fracture.
Dr. Crook explained the x-ray process at Mt. McGregor. Mt. McGregor has an
x-ray machine on site and an x-ray technician generally available three days a
week. X-rays, once taken, are sent to AMCH for a radiologist to read and issue
a report. Generally, the reports take two to three days to arrive from AMCH.
If there is an emergency situation, the inmate patient is sent to an area
emergency room. In Claimant's circumstance, Dr. Crook did not wait for the
radiologist's report as he saw the fracture on the x-ray and ordered Claimant to
AMCH for an orthopedic consultation. (Exhibit 23, pp.43-44). Dr. Crook
testified that Claimant's clinical presentation, in his opinion, "did not
warrant that he see an orthopedic surgeon unless and until ...an
x-ray...confirmed that he had a fracture" (Exhibit 23, p. 36).
The State called two witnesses in its defense. Correction Officer Thomas
Malin, testified to a lengthy career with DOCS. Since 1983 he has served at
Mt. McGregor in a bid position as Transportation Officer. Officer Malin
provided testimony which described the restraint hardware used in inmate
transportation and the rules regarding inmate security during transportation.
Officer Malin did not however have any direct knowledge regarding
William George Reittinger, a registered nurse for eleven years and a per diem
relief nurse at Mt. McGregor testified that he treated Claimant on the date of
injury, November 25, 1998. Nurse Reittinger applied a "Jones Dressing" which he
described as a dressing applied in the emergency room. It is casting material
with an Ace wrap applied over, which permits for expansion due to initial
swelling. It is considered a splint and is used to immobilize the injured area.
Nurse Reittinger testified that he was on duty on December 24, 1998 when
Claimant refused to be transported to his medical appointment. He attempted,
but was unsuccessful, in having Claimant use an alternative method of reaching
the transport vehicle.
The crux of Claimant's case is that the Defendant committed malpractice by
delaying diagnosis and treatment of the foot injury. 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,
53 AD2d 1025 lv denied 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. The negligent act
or omission by a nurse can be malpractice if the nurse's conduct itself
constitutes medical treatment or such bears a substantial relationship to the
rendition of medical treatment by a licensed physician (Bleiler v Bodnar,
65 NY2d 65). However, where, as here, 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,
When medical malpractice involves patient treatment, three component duties are
owed by the physician to the patient: (1) the duty to possess the requisite
knowledge and skill such as is possessed by the average member of the medical
possession (sic); (2) a duty to exercise ordinary and reasonable care in the
application of such professional knowledge and skill; and (3) the duty to use
his best judgment in the application of this knowledge and skill Littlejohn v
State of New York 87 AD2d 951, 952 citing (Pike v Honsinger, 155 NY
201, 209- 210). As such, the burden was on claimant to establish that medical
personnel at Mt. McGregor failed in one or more of those duties. The burden was
also on Claimant to establish that the alleged negligence (the failure or delay
in treating his injury) 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
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 on
behalf of Claimant was required (Morgan v State of New York, 40 AD2d 891;
see also, Macey v Hassam, 97 AD2d 919).
Claimant's expert did not present any testimony that the staff at Mt. McGregor
lacked the requisite knowledge and skill to treat Claimant. Therefore, the
record herein does not support a finding that there was a failure to exercise
any professional judgment (see, Huntley v State of New York, 62 NY2d
134,137; Herold v State of New York, 15 AD2d 835, Cohen v State of New
York, 51 AD2d 494, affd 41 NY2d 1086, Amadon v State of New York 182
AD2d 955, lv den 81 NY2d 701.), or that there was "almost casual
consideration" of the situation (Clark v State of New York, 99 AD2d 616,
617). However, Claimant's expert testified that there were specific deviations
from the standard of care. As the Court of Appeals has noted, the line between
medical judgment and deviation from good medical practice is not easy to draw
(Topel v Long Island Jewish Medical Center, 55 NY2d 682). This insight
is readily apparent from the testimony of Claimant's expert who opined that an
x-ray should have been obtained "immediately or shortly thereafter," but not
five days later. This opinion was based in part on a fact assumed by Dr.
Victoriano; namely, that Claimant presented with a "deformity." He described
the foot as "obviously deformed" (Exhibit 25C, p. 16) and "badly deformed"
(Exhibit 25C, p.20) and stated at the time of injury "it would have been obvious
to the care giver that there was a deformity..." (Exhibit 25C, pp 14-15). The
testimony of Nurse Eldridge and the notes of Nurse Reittinger contained in
Claimant's medical records, both of whom attended to Claimant on the date of
injury, do not support that assumption. The first references to a "deformity"
are found in the records of AMCH on November 30, 1998. While an x-ray sooner
rather than later is to be preferred, the record does not support a finding that
an immediate x-ray was medically necessary, nor does it support a finding that
the x-ray was untimely obtained on November 30, 1998.
The Court is also unpersuaded by Dr. Victoriano's testimony regarding the
treatment provided to Claimant at Mt. McGregor both before the x-ray of November
30, 1998 and following his return from AMCH.
Prior to the x-ray, the medical records and testimony establish that Claimant
was treated as if he had had a fracture. He was consistently reminded the foot
was to be non-weight bearing; an instruction Claimant regularly ignored. In
this regard, Dr. Victoriano testified that Claimant's foot was not immobilized
(Exhibit 25C, p. 17). When asked about the Jones dressing on cross-examination,
he first denied one was applied (Exhibit 25C, p. 56), and when presented with
documentary evidence of the Jones Dressing, stated, that it was a "bulky
splint", then added, it is "not a splint" and it is "not rigid" (Exhibit 25C, pp
56-57). Similarly, Dr. Victoriano testified that if the foot was casted that
first day, it "would have prevented the patient from having to undergo all this
[sic] other problems such as operations and wound problems" (Exhibit 25C, p.
43). Yet, he acknowledged on cross-examination that a cast is improper because
of swelling which may compromise circulation in the limb (Exhibit 25C, p.
The issue of care following Claimant's return to Mt. McGregor focused on
Claimant's inability to attend his follow-up orthopedic appointments outside of
Mt. McGregor which prevented an evaluation, including x-rays, of how Claimant
was progressing. Admittedly, follow-up care for Claimant's fracture was
necessary. Defendant was ready, willing and able to transport claimant to his
scheduled appointments in December. Quite simply, however, the Court does not
credit Claimant's testimony that he was unable to ambulate to the transport
vehicles and further finds his refusal of alternatives was not reasonable. It
is the Court's view that Claimant had made a decision as to how he was to be
transported and anything else was unacceptable. The Court, on this record, will
not second guess the security needs and procedures of DOCS, or the decisions
made in this particular case in attempting to transport Claimant.
The third deviation to which claimant's expert testified was that Claimant was
not properly informed of his options on or about January 7, 1999 when it was
discovered the fracture was again displaced. At that point in time, Claimant
was under the care of a private orthopedic specialist. There is no evidence to
suggest Claimant reasonably believed his care was in the hands of Defendant's
doctors (see, Rivers v State of New York, 159 AD2d 788 lv denied
76 NY2d 701). Accordingly, the Defendant can not be held liable for the
treatment, or lack thereof, rendered by said specialists.
The Court finds and concludes that Claimant has failed to establish by a
preponderance of the credible evidence that the Defendant departed from the
requisite standard of medical care to be provided to Claimant and that any delay
in providing Claimant with treatment constituted negligence. Marchione v
State of New York, 194 AD2d 851, 854-55.