Howard Estep, the Claimant herein, alleges in Claim number 99332 that the
Defendant's negligent maintenance of a volleyball court at Sing Sing
Correctional Facility (hereafter Sing Sing) is the proximate cause of injuries
he sustained to his right foot and ankle when he fell while playing volleyball.
The claim also includes a cause of action for medical malpractice. Trial of the
matter was held at Sing Sing on August 17, 2001.
Claimant testified that on June 5, 1998 "at about 9:20
he had been playing volleyball on the B-Block yard when he "fell in a six inch
drop-off" hole on the court. Claimant was taken to the emergency room at the
facility, where he remained until "about midnight" when he was "taken to St.
Agnes Hospital for x-rays." When he was returned to Sing Sing, he was advised
that he "had a hairline crack in the foot" or a "chip fracture," by medical
Notations on the Report of Inmate Injury form indicate as the "nature of the
injury" that the claimant had a "swollen ecchymotic...[right] lateral
ankle...[with] abrasions. Extremely tender to touch; unable to bear...[weight].
Pedal pulses palpable. Good capillary refill." [Claimant's Exhibit "7", Report
of Inmate Injury, dated June, 5, 1998]. The "treatment provided" is noted as:
) - continues to...[complain of] extreme pain. Ace wrap.
Remains unable to bear...[weight]. PA Williams aware...to St. Agnes ER [in] mini
] The form also indicates that the Claimant "reported for
medical treatment: 6/5/98...9 pm."
An "Admission and Discharge Summary" form confirms that Claimant was admitted
to the facility's medical unit on June 6, 1998. [Claimant's Exhibit "8",
Division of Health Services "Admission & Discharge Summary", Dr. Maw]. The
physician's notes in the "Discharge Summary" section of the form indicate:
"37...[year old male] who had been admitted...[complaining] of sprain and chip
fracture...[right] ankle took a long time to heal. Finally, that ankle has
improved and also...[patient] can bear some weight. Exam of this...[right]
ankle no swelling - ecchymosis resolved, and can bear weight...(
) and this day well and...[discharged] to population to be
followed by PA Williams." [Ibid.
On July 15, 1998, Claimant said he saw an orthopedic specialist. He complained
of "severe pain in his foot," numbness, "intermittent loss of feeling in his
toes...[and] sharp pains at other times at the back of his foot,....continual
[pain in his ankle] and...heavy pain in the arch area of the foot." [Claim No.
99332, Filed November 19, 1998; Page 5, Paragraph "Twentieth"]. "The
orthopedist...[said] ‘you might have a sprained ankle, or torn ligaments
in that area, and it would have been better if you had broken or fractured your
., Page 6, paragraph "Twentyfirst"]. According to Claimant, a
"balloon cast" was prescribed, and a follow up visit was to be
On October 7, 1998, he saw the facility's physician, Dr. Key Tint Maw, as well
as an orthopedic specialist again. X-rays were taken. Claimant testified that
an "air splint was ordered" but "never received." The Ambulatory Health Record
(hereafter AHR) for that day confirms both Dr. Maw and an orthopedist examined
Claimant. [Claimant's Exhibit "6", AHR for Howard Estep, 10/7/98 -
]. Dr. Maw's notes indicate that Claimant was experiencing "pain" in his "right
ankle", and that the ankle was examined. "No swelling" was observed, and the
orthopedist noted that it was "explained" to Claimant "...that this is pain due
to sprain and will have." (sic
On November 13, 1998 Claimant was seen by medical personnel again. There are
notations by Dr. Maw and the orthopedist, respectively, indicating that an "air
splint for the right ankle" is to be ordered, and that "...[physical therapy]
awaiting to be scheduled - air splint to be ordered."
Claimant filed a grievance in or about March, 1999, alleging he had not
received the air splint or air cast which was ordered, not been taken out for
sick call when he'd asked, and complaining of pain.[Claimant's Exhibit "5",
Inmate Grievance Complaint , No. 28938, dated March 9, 1999]. The investigation
report indicated that the nurse did "...not know why he was not called out on
3/9/99. Grievant was last seen at sick call on 2/12/99 regarding complaints
about his leg. In October of last year Dr. Galino ordered an air cast for
grievant. When grievant was seen by Dr. Maw no air cast was ordered by Dr. Maw.
Lastly, grievant was going to physical therapy. Nurse Cappuano stated that they
would have told the medical dept. if such a cast was still necessary.
Grievant's last p/t report showed no new complaints." [Claimant's Exhibit "9",
Inmate Grievance No. S/S 28938/99].
The Inmate Grievance Resolution Committee found "...Grievant never received the
air cast....[and recommended] that the Grievant be re-evaluated to determine if
there is still a need for the air cast.
The Superintendent's' decision indicated: "Grievant will
be scheduled to see the P.A. The air cast was recommended by Dr. Galino, not
ordered. It was up to Dr. Maw to actually order it. Which was not done when
Dr. Maw saw the Grievant. Grievant will be re-evaluated concerning his
Claimant testified that on or about April 9, 1999 he was transferred to Clinton
Correctional Facility (hereafter Clinton).
Upon his transfer to Clinton, medical personnel prescribed pain relievers and
orthopedic boots. X-rays taken while at Clinton showed a chip fragment
"...which may relate to an old injury." [Claimant's Exhibit "4", Radiological
Consultation dated July 20, 1999]. The clinical finding at the time was
"chronic ankle pain." [Ibid.] The orthopedic boots were ordered on July 21,
1999. [Claimant's Exhibit "3", NYSDOCS Request & Report of Consultation
dated July 21, 1999].
Claimant testified that to this day he has "constant pain", a "problem standing
for a long period of time, and was still taking Naposin."
Dr. Key Tint Maw also testified. He recalled that the Claimant had been in the
hospital unit of Sing Sing from June 6, 1998 to July 21, 1998, for the
"operating diagnosis" of "sprained ankle." He said that the usual treatment
for a sprained ankle is "ice and rest," and that the Claimant "received more
attention than one normally would for a sprained ankle," because of his
"complaints of pain." Dr. Maw stated he was "continually seen by
orthopedists...on the 15
th [of July], and then he was diagnosed with sprained ankle;... on the 27th , on
August 16th, and on November 7th." The diagnosis continued to be "sprained
ankle" and "rest" was recommended. "On November 7th," Dr. Maw testified,
"...[Claimant] said that he had an old fracture that healed on the right ankle,
and, because he was complaining of weakness....it was recommended that he go to
physical therapy...and he went, consequently to physical therapy on November 7,
1998, December 2nd, December, 8th, December 10th, December 11th, December 14th,
December 17th and December 18th, 1998."
When asked about an "air cast", Dr. Maw testified that Claimant did receive an
air cast upon his discharge from St. Agnes. Dr. Maw stated that claimant
"applied the air cast, and when he applied it he always told me that the pain
was getting worse, so we did some adjustment..we gave him an ace bandage...we
tried to accommodate that pain." He testified that a "normal sprain" will heal
in "four to six weeks," and that Claimant had a very severe sprain, and "that
was why we kept him in IPCU for so long, and had him see orthopedists and had
him get physical therapy." He "seemed to be improving all the time" from the
doctor's examination of him: "the swelling had subsided, he was walking on his
own already." Dr. Maw stated that the Claimant had "received better care than he
would have on the outside."
On cross-examination, Dr. Maw noted that "as we know your case more, we can
tell you a better diagnosis," explaining that saying that the Claimant had a
"chip fracture" is not inconsistent with his having a sprained ankle. The
former was apparently the result of an earlier injury. When medical personnel
first looked at an x-ray, Dr. Maw indicated, "it is doubtful whether one could
say that the unconnected piece of bone is a result of the present injury or an
earlier one." He stated that the "orthopedists determined" as well as "St.
Agnes, that Claimant was suffering from a present sprain and an old fracture."
When asked, Dr. Maw stated that the orthopedist's notes for October 7, 1998
indicate that a "cast for ankle" would be helpful in addition to "physical
therapy." Dr. Maw initially stated that any "cast" would have to be ordered by
an orthopedist. Dr. Maw then said that "if it's an air cast, it's my duty to
order it", if another kind of cast, "...[the orthopedist] would have to apply it
to Claimant's ankle." Dr. Maw reiterated that the Claimant returned from St.
Agnes Hospital's emergency room with an air cast, "that it was documented
that...[Claimant] had it...I saw it myself."
After reviewing the Claimant's grievance [Claimant's Exhibit "5"], the witness
said he "did not know about any other air cast or air splint....[and did] not
remember about it." He asserted that whoever did the grievance investigation
did not "communicate with me." He also stated that the Claimant did not come to
him about any complaints; that Claimant apparently "communicated with PA
Williams, not with me."
No other witnesses testified.
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, 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
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).
Although the State has a duty to protect inmates from foreseeable risks of
harm, it is not the insurer of inmate safety. Its duty is to exercise
"reasonable care under the circumstances..." [
Basso v Miller
, 40 NY2d 233, 241 (1976)], to protect against foreseeable
risks of harm. Assuming that the State did not create the dangerous condition,
a Claimant must show that the State had actual or constructive notice of the
condition and failed to act reasonably to remedy it. Gordon v American
Museum of Natural History
, 67 NY2d 836,837 (1986). Creation of a dangerous
condition constitutes actual notice. Lewis v Metropolitan Transportation
., 99 AD2d 246, 249, affd.
64 NY2d 670 (1984).
With respect to constructive notice, any "...defect must be visible or apparent
and it must exist for a sufficient length of time prior to the accident to
permit...[a defendant] to discover and remedy it...(citation omitted
Gordon v American Museum of Natural History
Additionally, "...by engaging in a sport or recreational activity, a
participant consents to those commonly appreciated risks which are inherent in
and arise out of the nature of the sport generally and flow from such
Morgan v State of New York
, 90 NY2d 471,484 (1997), including risks due
to "open and obvious defects in the construction of the playing field, as long
as the participant is aware of the risks and appreciates the nature of the
)." Greenburg v Peekskill City
, 255 AD2d 487, 488 (2d Dept. 1998); See,
, Green v City of New York
, 263 AD2d 385 (1st Dept. 1999);
Cross v State of New York
, Claim No. 95789, UID 2000-013-511(Ct Claims
2000). "‘[A]ssumption of risk is not an absolute defense but a measure of
the defendant's duty of care...." Morgan v State of New York
, at 483, quoting
, Turcotte v Fell
, 68 NY2d
Claimant has not presented any proof with respect to his claim that Defendant
negligently maintained the volleyball court at Sing Sing, and that such
negligence was the proximate cause of his injuries. Accordingly, this aspect of
his claim must be dismissed.
In this case, only the testimony of the Claimant has been presented in support
of any claim of malpractice. No competent medical evidence was presented,
through a treating physician or an expert witness whose opinion was based upon
the available medical records, to support the allegation of medical malpractice.
Dr. Maw's testimony supported Defendant's position that the care given to this
Claimant for treatment of a sprained ankle was "more than he would have gotten
outside." There is no medical evidence on any medical issue and thus no proof
that accepted standards of care were not met. Accordingly, the claim of medical
malpractice must be dismissed.
With respect to a claim of simple negligence, there is some indication that the
actions of medical care givers amounted to ministerial neglect.
See, Coursen v New York Hospital
, Kagan v
State of New York
. Whether, and to what degree, use
of an air cast or an air splint or other item shown on the medical record as
recommended might have alleviated some of the Claimant's pain is not entirely
discernable on this record. Nonetheless, the Court is convinced that some
degree of pain might have been avoided by use of such palliative care. See,
, Ford v State of New York
, Claim No. 96731 (Filed August 7,
2001, Corbett, J.). Accordingly, Claimant is awarded $500.00 for his pain and
suffering attributable to the Defendant's failure to follow recommendations for
use of an air cast on his sprained ankle for a protracted period of
Let judgment be entered accordingly.