Willis White, the Claimant herein, alleges in Claim number 99446 that the
defendant's agents committed medical malpractice on about February 2, 1998,
while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing
Sing). Trial of the matter was held at Sing Sing on August 28, 2001.
Claimant testified that he had surgery in an "outside
on or about February 3, 1998, for an "enlarged prostate", and was returned to
Sing Sing the following day. He testified that for "11 days" Sing Sing medical
personnel failed to give medicine for pain relief prescribed by St. Agnes
Hospital. Facility medical personnel, he asserted, "said they'd misplaced the
paperwork from the ‘free world' doctor."
Claimant submitted some medical records in evidence, which don't appear to be
pertinent to his claim. [Claimant's Exhibit "1" , Ambulatory Health Record for
6/29/98 through 7/1/98; St. Agnes Hospital Physicians' Progress Notes]. The St.
Agnes doctor's notes are largely illegible. There is no indication of what
medications might have been prescribed from reviewing either those notes, or the
AHR notes submitted.
No other witnesses testified.
As an initial matter, Defendant made a motion to dismiss the claim based upon
its fourth and eighth affirmative defenses, a failure to timely and properly
serve and file the Notice of Intention to file claim, and the claim, pursuant
to §§10 and 11 Court of Claims Act. The Notice of Intention was
served on the Attorney General by regular mail on June 28, 1999. The claim
itself was also served on the Attorney General by regular mail, and was filed
with the Court of Claims on December 8, 1998. Claimant indicated that he had
requested mail room personnel mail these documents by certified mail, return
receipt requested, but was told it was "not necessary."
The filing and service requirements contained in §§10 and 11 Court of
Claims Act are jurisdictional in nature and must be strictly construed.
Finnerty v New York State Thruway Auth.
, 75 NY2d 721, 722-723
(1989). Service upon the Attorney General by ordinary mail is generally
insufficient to acquire jurisdiction over the State, unless the State has failed
to properly plead jurisdictional defenses or raise them by motion. §11(c)
Court of Claims Act; Edens v State of New York
, 259 AD2d 729 (2d Dept.
1999); Philippe v State of New York
, 248 AD2d 827 (3d Dept 1998).
Additionally, the Claimant has the burden of establishing proper service.
Boudreau v Ivanov
, 154 AD2d 638, 639 (2d Dept. 1989).
Here, the State's Verified Answer pleaded these defenses with particularity,
preserving the issue for review. Even if the manner of service in this case had
been proper, assuming an accrual date of on or about February 2, 1998, the
Notice of Intention was served well after 90 days from the date of accrual of
the claim. Thus, even if facility personnel dissuaded Claimant from mailing the
documents certified mail, return receipt requested, there is still a timeliness
, Philippe v State of New York
Accordingly, the Defendant's motion to dismiss on jurisdictional grounds,
reserved on at the time of trial, is now granted and Claim number 99446 is
The Court also notes Claimant would have been unsuccessful on the merits of his
claim as well. 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).
In this case, only the testimony of the Claimant has been presented to support
any claim of medical malpractice or ministerial neglect. There was no evidence
of a prescription, or any other prescribed specific care which was not provided
by medical personnel at Sing Sing. Without competent medical evidence, through
a treating physician or an expert witness whose opinion was based upon the
available medical records, Claimant cannot sustain his burden of proof. Thus,
even without the jurisdictional dismissal, the claim is dismissed on the merits
Let Judgment be entered accordingly.