New York State Court of Claims

New York State Court of Claims

SWEENEY v. THE STATE OF NEW YORK, #2001-028-0016, Claim No. 100910


Medical practice claim premised on failure to timely obtain x-ray, provide follow-up care and advise Claimant of medical options dismissed. Court held Claimant's expert failed to establish malpractice and causation. Court viewed Claimant's acts of refusing transport to outside appointments and to remain non-weight bearing as more likely causes of Claimant's injuries.

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:
THE PROSKIN LAW FIRMBY: Arnold Proskin, Esq.
Defendant's attorney:
BY: Paul F. Cagino, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 13, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


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 diabetic.

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 left] foot."[1] 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.[2] Dr. Victoriano 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 without diabetes.

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 process.

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 of Claimant.[3]

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 off it".[4] 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 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 Claimant.[5]

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, supra).

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 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 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.[6] 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. 55).

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.

arguendo there were defects in the standard of care by the Defendant, the Court finds that the Claimant has also failed to establish that such defects were the proximate cause of Claimant's injuries. Claimant's expert did not, in the Court's view, establish to a degree of medical certainty that the injuries flowed from defendant's conduct. When asked had Claimant been casted sooner could the first surgery have been avoided, Dr. Victoriano testified that he did not know whether the findings on the x-ray would have been the same or not. All that he was willing to venture was "there is a possibility that the fracture would not have been that displaced" if casted (Exhibit 25C, p. 45). He offered the same opinion- "who knows?" (Exhibit 25C, p. 46) - regarding the likelihood of avoiding the second operation had Claimant been x-rayed and casted sooner. "[A] mere possibility of cure does not satisfy a prerequisite to liability;" rather it must be more probable than not that the claimed injury was caused by defendant's malpractice (Mortensen v Memorial Hospital, 105 AD2d 151 at 158). The Court is also not persuaded that Claimant's conduct in refusing to abide by appropriate medical directions was not the proximate cause of his injuries. Dr. Victoriano offered, in jest, that he would tie down his patient, and added he would remove the patient's crutches to encourage non-weight bearing. The import of that exchange revealed to the Court, there is no effective way to prevent a patient from engaging in weight bearing activities and from disobeying medical advice.

Accordingly, the State's motion to dismiss made at the conclusion of the Claimant's direct case, upon which decision was reserved, is now granted and the claim is hereby dismissed. The Chief Clerk is directed to enter judgment accordingly.[7]

July 13, 2001
Albany, New York

Judge of the Court of Claims

[1] Unless otherwise noted, quotations are from the audiotapes or trial notes of the proceeding.
[2] Dr. Victoriano's testimony was provided by videotape deposition (Exhibit 25 A & 25 B), with a transcript provided (Exhibit 25 C), which the Court viewed following conclusion of the live testimony.
[3] The parties stipulated into the record on Claimant's case in chief each individual's entire deposition transcript, which were marked as follows: Nurse Eldridge (Exhibit 22); Dr. Crook (Exhibit 23); and Dr. Cunningham (Exhibit 24).
[4]While Dr. Cunningham testified he gave these orders on November 25, Dr. Crook testified he may have given the orders. The undisputed fact is the orders were given.
[5] During Officer Malin's direct and cross-examination the Court permitted a demonstration to be performed to illustrate an individual using crutches while shackled. As stated on the record, the Court has given the demonstration very limited weight as the volunteer's frame was physically much smaller than was that of the 6 foot 1 inch, 210 pound Claimant.
[6] Dr. Victoriano's testimony was further undermined by his testimony regarding the operation performed by Dr. O'Connor at AMCH. Under cross-examination, on one hand he stated the operation was inappropriate because the Lisfranc portion was not treated and the fracture fell apart, but then stopped short of saying anything improper was done. (Exhibit 25C, pp 74-77).
[7] All other motions upon which the Court reserved decision during trial are denied.