New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, #2001-030-524, Claim No. 99409


Inmate's claim alleging medical malpractice, negligence and ministerial neglect dismissed for failure to establish by preponderance of the credible evidence. No expert testimony regarding failure to obtain adequate medical history

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:
Third-party defendant's attorney:

Signature date:
OCTOBER 16, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


James Allen, the Claimant herein, alleges in claim number 99409 that the defendant's agents committed medical malpractice on or about September 7, 1996, while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was held at Sing Sing on August 17, 2001.

The Claimant relied on the factual allegations contained in his claim, and his own testimony at trial. He testified that on Saturday, September 7, 1996 while playing football in the keeplock recreation yard at Sing Sing, he was elbowed in the jaw.

He went to the facility's emergency room, where he was seen by Nurse Emadu and Nurse Diakontanis. They gave him Tylenol, a mouth rinse of peroxide/water, an ice pack, and returned him to his cell. Notes in Claimant's Ambulatory Health Record (hereafter AHR) for that day indicate: "Inmate was elbowed on left side of face @ jaw while playing basketball this a.m. All teeth intact. Piece of enamel or old filling broken off from 2
nd upper back ...[left] tooth. Ice packs applied to jaw area....Call out given to see DDS Monday 9 a.m." (EXH. A). In the "subjective" portion of the notes Claimant is quoted as saying "I got my teeth knocked out."
Once returned to his cell, Claimant asserted he passed out from excessive severe pain and did not regain consciousness until 6:40 p.m. When he woke up, he complained of dizziness and pain to the gallery officer and asked to go to emergency room. He stated that he "rolled over"[1]
on his bed and felt his face "swollen with a knob out to here," describing a swollen area of his face on the lower left jaw. Claimant alleged Gallery Officer Urack called the emergency room, and described Claimant's symptoms and relayed his request for attention. The officer was told to give Claimant Tylenol, and that there was nothing the medical staff could do at that point. It was suggested Claimant sign up for sick call the next morning.
Claimant alleged he asked to see a sergeant at about 8:00 p.m. After interviewing him, Sgt. Lawson determined that the Claimant's "...complaint may have some merit....[the Sergeant] contacted Nurse Grasso and further described his complaint. She agreed to see him and ... [the Sergeant] immediately sent him to her (approx 7:30p)...[Sergeant Lawson] was notified that he was being sent to outside hospital for a possible broken jaw." (EXH. 1)

Claimant said he had to "threaten to cut...[himself]" in order to get medical attention. He said he made threats, consisting of inflicting razor wounds upon his wrist in order to be seen by someone about his pain. It does not appear he carried out those threats.

At 8:30 p.m he went to the facility's emergency room again. He was examined by Nurse Grasso, at which time it was determined that he should be referred to an outside hospital. Nurse Grasso noted: "...inmate's 2
nd visit to ER since being elbowed during basketball game this a.m; claims can't eat, can't open mouth, ‘I haven't eaten all day'. Presents...[with] swelling lower...[right] side of face. Indicates lower jaw...[left to right] as painful. After being asked, stated ‘I had a hairline fracture in my jaw in ‘91 or ‘92.' PA Williams beeped at 8:35 p.m; A-Block Sgt notified 8:48 p.m, WC notified 8:50 p.m, St. Agnes ER notified 9:08 p.m awaiting ...[patient's arrival]...[at] 8:45 p.m sent to St. Agnes Hospital, ...[rule out] fractured jaw." (EXH. B). He testified that when X-rays were later taken at St. Agnes Hospital, it was discovered he had a fractured jaw in two places. He was ultimately admitted and treated at Westchester Medical Center.
On cross-examination Claimant indicated that when he first saw medical personnel at approximately 11:15 a.m on September 7, 1996, he did not tell them that he had fractured his jaw on a previous occasion, nor was he asked. It was not until his second visit to the emergency room in the evening that medical personnel learned of the prior fracture.

No testimony, other than Claimant's, was offered.

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 and treatment.
Rivers v State of New York, 159 AD2d 788, 789 (3d Dept. 1990), lv. denied, 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 [or her] injuries' (
Parker v State of New York , 242 AD2d 785, 786)." Auger v State of New York, 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. denied, 40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky 94 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 expert testimony.
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 any claim of medical malpractice or simple negligence. While it might appear intuitively that failing to obtain an adequate medical history[2]
would constitute negligence of the kind readily comprehensible without the necessity of expert testimony, whether the lack of knowledge concerning injury to claimant's jaw five years previously would make a difference in treatment is not clear without expert medical testimony[3]. C.f., Ford v State of New York, Claim No. 96731 (filed August 7, 2001, Corbett, J.); Coursen v New York Hospital, supra.
In any event, the AHR reflects that the Claimant was seen promptly by medical personnel in the first instance, almost immediately after his injury. When his symptoms worsened, he was evaluated again, and a determination was made to send the Claimant to an outside hospital for more comprehensive evaluation. Because there was no testimony by a medical expert to show that these steps did not constitute reasonable care, or that Claimant suffered any causally linked damage, there is insufficient evidence to support an allegation of medical malpractice.

Additionally, and as referred to above, from this record it cannot be concluded that the actions of medical care givers amounted to simple negligence or ministerial neglect. To the extent the claim is read to assert such theories, any cause of action for negligence or ministerial neglect is also unsupported.

Claimant has failed to establish his claims of medical malpractice and negligence by a preponderance of the evidence. Accordingly, Claim number 99409 is dismissed in its entirety.

The Chief Clerk is directed to enter judgment accordingly.

OCTOBER 16, 2001

Judge of the Court of Claims

[1]All quotations are to trial notes or audiotapes unless otherwise noted.
[2] Failure "to take a proper medical history - a crucial element of diagnosis and treatment...failure to elicit all information pertinent to treatment could unquestionably constitute medical malpractice." Bleiler v Bodnar, 65 NY2d 65,72 (1985).
[3] See, also, Gibides v Powell, 256 AD2d 1091,1092 (4th Dept. 1998)["...[P]laintiff's expert opined that the failure to take an adequate history and to refer decedent for appropriate care was a proximate cause of her death...(citation omitted).]"