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
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
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
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
Rivers v State of New York
, 159 AD2d 788, 789 (3d Dept. 1990), lv.
, 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
, 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
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
any claim of medical malpractice or simple negligence. While it might appear
intuitively that failing to obtain an adequate medical
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
, Ford v State of New York
, Claim No. 96731 (filed
August 7, 2001, Corbett, J.); Coursen v New York Hospital
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
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.