New York State Court of Claims

New York State Court of Claims

MITCHELL v. THE STATE OF NEW YORK, #2001-028-0506, Claim No. 103000, Motion No. M-62613


Motion for leave to amend claim is granted over defendant's objection because non-treatment or failure to treat can give rise to a cause of action for medical malpractice and because the doctrine of continual treatment can apply to prison inmates who are treated at a series of different correctional facilities.

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:
Defendant's attorney:
BY: Frederick H. McGown, III, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 4, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant's motion for permission to amend the claim.
1. Notice of Motion and Supporting Affirmation of Anthony Ofodile, Esq., filed Oct. 23, 2000, with annexed Exhibits A-D ("Ofodile affirmation")

2. Affirmation in Opposition of Frederick H. McGown, III, Esq., AAG, filed Nov. 2, 2000 ("McGown affirmation")

3. Reply Affirmation of Anthony Ofodile, Esq., filed Nov. 15, 2000

4. Filed papers: Claim, filed August 28, 2000; Answer, filed Oct. 6, 2000

The claim in this action was filed by claimant Abraham Mitchell, who was then appearing pro se. He has since retained an attorney to represent him, and that attorney now moves for permission to file an amended claim.

The original claim alleges that the medical staffs of Eastern, Woodbourne, and Mid-Orange Correctional Facilities failed to provide adequate or proper medical care of claimant during the period from March 1995 to April 2000. Claimant alleges that he was diagnosed as suffering from glaucoma while in the early stages of that disease but that nevertheless, because of insufficient and/or inadequate treatment received after the diagnosis was made, he lost 95 percent of the vision in his right eye. The latest treatment date mentioned in the claim was a visit to an outside eye specialist in December 1999. The proposed amended claim sets forth the same general allegations, albeit in much greater detail, but it contains reference to an examination that took place in March or April of 2000, when claimant was informed of the extent of his vision loss.

A notice of intention to file a claim was served on the Attorney General on April 18, 2000 (Ofodile affirmation, Exh D), and as noted above, the claim was subsequently filed August 28, 2000. In its answer, the State raised, as its fourth affirmative defense, the following:

The Court lacks personal jurisdiction due to the fact that the notice of intention was not served within 90 days of the accrual of the cause of action pursuant to Court of Claims Act §10.

The fifth affirmative defense contained identical wording, except that it related to the claim, rather than the notice of intention.[1]

Factors to be considered in determining whether to allow amendment of a pleading are whether there would be any prejudice to the opposing party; the effect, if any, that amendment would have on the orderly prosecution of the action; whether the moving party unduly delayed in seeking to add the new allegations; and whether the proposed amendment is palpably improper or insufficient as a matter of law (Excelsior Ins. Co. v Antretter Contr. Corp., 262 AD2d 124; Gonfiantini v Zino, 184 AD2d 368, 370; Harding v Filancia, 144 AD2d 538, 539; White v State of New York, 161 Misc 2d 938). A claim that was not sufficient to vest the Court with jurisdiction cannot be amended, as of right or with permission, so as to cure the jurisdictional defect (Sudakin v Long Island Rail Road Company, 32 AD2d 560).

Counsel for defendant opposes the instant motion on the ground that the original claim was untimely. If it is assumed for the moment that claimant is entitled to the benefits of the doctrine of continuous treatment (CPLR 214-A, see discussion below) and that the claim accrued in December 1999, it is true that a claim would have to be filed and served or notice of intention served at the latest by the end of March 2000 (Court of Claims Act §10[3]). Defendant cites this accrual date and characterizes the current motion to amend, which adds express reference to a March or April examination, as a "self-serving" effort, "wholly unsupported by claimant's original claim," to cure the jurisdictional defect by changing the date on which the cause of action accrued (McGown affirmation, ¶ ¶ 9, 10). This view overlooks the content of the first allegation in the original claim:

This claim is for negligence of the State committed by its employees for failure of its employees the Medical Staff at Estern [sic] Napanoch; Woodbourne, and Mid-Orange Correctional Facilities from March 1995 to July 1996, July 1996 to Mid-1998, and April 1999 to 2000, respectively, to provide adequate medical care following accepted medical standards on the Spring of 1995 upon the diagnose [sic] of the early stages of Glaucoma . . . . ".

While this original pleading was not smoothly or professionally drafted, it does provide sufficient information to apprise the State of the nature of the cause of action and the relevant dates: from March 1995 to April 2000.

Defendant also contends that claimant is not entitled to the benefit of the continuous doctrine treatment because by claimant's own admission no "course of treatment" was undertaken by the DOCS medical staff during the period in question, the principal allegation of medical malpractice being that defendant failed to provide treatment. The Court does not accept this position because continual non-treatment or failure to provide treatment can, in certain circumstances, provide the basis for a medical malpractice claim and may also qualify for the continuous treatment doctrine, particularly where the patient is a prison inmate.

A physician commits medical malpractice when he fails to carry out one or more of the three duties that a physician owes to his patient: "(1) a duty to possess the requisite knowledge and skill such as is possessed by the average member of the medical profession; (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" (Hale v State of New York, 53 AD2d 1025, citing to Pike v Honsinger, 155 NY 201, 209-210). Consequently, unreasonable delay in properly diagnosing and treating a medical condition may constitute medical malpractice when the omissions "amount to something more than an honest error in professional judgment." (Stanback v State of New York, 163 AD2d 298).

Liability or potential liability has been found in a number of situations in which prison officials failed to provide treatment, as well as in those in which improper treatment was provided. In Stanback (supra), the State provided only ineffective treatment to one of its inmates for three and one-half years before the necessary diagnostic procedure was ordered. When its results indicated that surgery was needed, still another year passed before the operation was performed. In Larkin v State of New York (84 AD2d 438), the Fourth Department found the State liable for failing to recognize a latent neurological condition from what expert witnesses described as "classic symptoms". (See also, Pigno v Bunim, 43 AD2d 718 ["[L]iability can ensue if [the physician's] judgment is not based upon intelligence and thus there is a failure to exercise any professional judgment."]). In order for negligence of this nature to give rise to a claim for damages, the claimant (or plaintiff) must establish that the period of negligent delay contributed to or caused actual harm beyond that which the disease process would have caused in any event (see e.g., Schneider v Memorial Hospital for Cancer and Allied Diseases, 100 AD2d 583, 584).

The continuous treatment doctrine may be properly applied to situations where a prison inmate is treated (or necessary treatment omitted) by physicians in a succession of State facilities. "Where treatment is provided by more than one physician or health care provider, the continuing treatment by one will be imputed to the other in the presence of an agency relationship, or some other relevant association which continues the nexus between the two providers" (Ganapolskaya v VIP Assocs, 221 AD2d 59). The fact that the providers work at different locations, in different medical clinics does not defeat application of the doctrine where the subsequent health care workers were in "relevant association" with the original physician (Ogle v State of New York, 142 AD2d 37, 40). Ogle, in fact, provides an example of the continuous treatment doctrine being applied where the alleged malpractice was failure to follow up and treat a condition (in that case, tuberculosis) after it had been diagnosed.

Defendant's objection to the relief sought does not have merit, and the proposed amended claim sets forth the causes of action and underlying facts in a more complete and organized fashion. Consequently, because leave to amend is to be "freely given" (CPLR 3025) and will, in this instance, have no negative impact on defendant, claimant's motion is granted. The amended claim is to be filed and served, within thirty days of the date this decision and order is file-stamped.

January 4, 2001
Albany, New York

Judge of the Court of Claims

[1] The Court does not decide whether these statements would be sufficient to satisfy the requirement for "particularity" found in section 11(c) of the Court of Claims Act.