Andre D. Muhammad, the Claimant herein, claims negligence and medical
malpractice by the Defendant's employees. His claim was filed on September 17,
1997. The trial of this matter was held at Sing Sing Correctional Facility
(hereafter Sing Sing) on August 3, 2001.
The Claimant relied upon the factual allegations contained in his claim, as
well as his own testimony at trial. In the claim, he alleges that on December
5, 1992 Correction Officer Francis gave him a direct order to carry a rack of
plates and cups into the basement of the Mess hall. He states the stairs had to
be used because the elevator was under
While carrying the rack of plates and cups stacked above his line of vision, he
slipped on a dish on the stairs falling down the stairs into the
He was taken to the emergency room at Sing Sing; issued medication (pain
killers) and an ice pack, as well as a walking cane.
Claimant alleges that from the date of the fall through March 29, 1993, he
continued to complain of pain in the right leg, lower back and filed an
institutional grievance. Despite his complaints, he alleges he was not
"physically examined internally or externally by any physician, nurse or
physician Assistant. Claimant also pleaded to be seen and examined by an
orthopedic specialist, but to no avail, until" May 7, 1993. [Claim Number 96986,
Thereafter, he was transferred to Clinton Correctional Facility (hereafter
Clinton) allegedly because of his constant complaints, and institutional
grievances , without a medical "hold" which should have been required. Although
an orthopedic consult was ordered at Clinton on May 13, 1993, it was "not
., Paragraph "8"].
On June 29, 1993 he was transferred to Attica Correctional Facility (hereafter
Attica). On July 2, 1993 an orthopedic consult was ordered and conducted on
July 20, 1993. It recommended "removal of the nail". [
"After Claimant had made several written and verbal complaints, he was finally
taken to Wende Correctional Facility" (hereafter Wende) where he was "seen by a
physician who read and reviewed old x-rays that were taken on the 22
nd day of August 1991". Removal of "the entire rod and pins " was recommended.
Claimant alleges that between July 29, 1993 to the date of filing it was only a
"bent pin in the right knee" which was the source of his pain, and that the
entire hardware didn't have to be removed. He wanted physical therapy, and
removal of just that pin.
It is "fundamental law that the State has a duty to provide reasonable and
adequate medical care to the inmates of its prisons," including proper diagnosis
Rivers v State of New York
, 159 AD2d 788, 789 (3d Dept. 1990),
, 76 NY2d 701 (1990).
In a medical malpractice claim, the Claimant has the burden of proof and must
prove (1) a deviation or departure from accepted practice and (2) evidence that
such deviation was the proximate cause of the injury or other damage. A cause
of action is premised in medical malpractice when it is the medical treatment,
or the lack of it, that is in issue. A Claimant must establish that the medical
care giver either did not possess or did not use reasonable care or best
judgment in applying the knowledge and skill ordinarily possessed by
practitioners in the field. The "‘claimant must [demonstrate] that the
physician deviated from accepted medical practice and that the alleged deviation
proximately caused his injuries' (
Parker v State of New York
, 242 AD2d 785, 786...)." Auger v
, 263 AD2d 929, 931 (3d Dept. 1999). Without such medical proof, no
viable claim giving rise to liability on the part of the State can be sustained.
Hale v State of New York
, 53 AD2d 1025 (4th Dept. 1976), lv.
, 40 NY2d 804 (1976). A medical expert's testimony is necessary
to establish, at a minimum, the standard of care. Spensieri v Lasky
NY2d 231 (1999).
If a claim can be read to allege simple negligence, or medical negligence, then
the alleged negligent omissions or acts by the State's employees can be readily
determined by a fact finder using common knowledge without the necessity of
Coursen v New York Hospital-Cornell Medical Center
, 114 AD2d 254, 256
(1st Dept. 1986). Similarly, the State may be found liable for ministerial
neglect if its employees fail to comply with an institution's own administrative
procedures and protocols for dispensing medical care to inmates. Kagan v
State of New York
, 221 AD2d 7,10 (2d Dept 1996).
In this case only the testimony of the Claimant has been presented to support
the claim of medical malpractice. No competent medical evidence was presented,
either from a treating physician or orthopedist, or an expert witness whose
opinion was based upon the available medical records, to support the allegation
of medical malpractice. There is no medical evidence on any medical issue and
no proof that accepted standards of care were not met. Accordingly, the claim
for medical malpractice is dismissed.
Additionally, from this record there is no indication that the actions of
medical care givers amounted to simple negligence or ministerial neglect.
Coursen v New York Hospital
; Kagan v State of
. To the extent the claim can be read to
assert such a theory, any claim for negligence or ministerial neglect is also
The Defendant's motion to dismiss for failure to establish a
case, upon which decision was reserved on at the time of
trial, is hereby granted and Claim number 96986 is hereby dismissed. Any other
motions made at the time of trial, upon which decision was reserved, are in all
The Chief Clerk is directed to enter judgment accordingly.