Ronald Atkins, the Claimant herein, alleges in Claim number 99102 the
Defendant's agents were negligent in transferring him from Sing Sing
Correctional Facility (hereafter Sing Sing) to a different correctional facility
on or about May 26, 1997, rather than placing him on medical hold status.
Trial of the matter was held at Sing Sing on August 28, 2001.
Claimant relied upon the factual allegations contained in his claim, certain
real evidence, and his own testimony at trial. He testified that the "medical
classification, used for inmates who are non-ambulatory or are otherwise acutely
ill should have applied in his case to keep him at Sing Sing to properly recover
On April 28, 1997 Claimant had an operation to remove a bunion from his left
foot. He testified that a "pin" was inserted through his left foot, and he was
advised to stay off the foot. Because of that direction, Claimant was given a
"bus pass", and was moved from building to building in Sing Sing by van to
accommodate his use of crutches.
Three weeks after the operation, he was told to pack up because he was being
transferred to another facility. Claimant "thought the officer was joking,"
given that he was still recovering. When Claimant spoke to the sergeant to
explain that he was "still under medical care" and "couldn't move around" and
that there "must be some mistake," he got the "perception that the sergeant
thought ‘well, there's nothing I can do.'" Claimant noted it was Memorial
Day weekend. The regular staff was not there, and the people who were on
"didn't want to put themselves out." Claimant also noted that he was apparently
not on "medical hold" status.
On May 26, 1997,
he was placed at Downstate Correctional Facility (hereafter Downstate) for a two
day holdover, where he was forced to walk through the facility without crutches.
He alleged he was "put in the bull pen" with "about 20 other people" at
Downstate. Because of the "nature of Downstate," in that "they have a lot of
inmates, coming in from a lot of different areas, they don't know who is who,
they took" Claimant's crutches when they put him in the "bull pen." He claimed
he was "forced to walk around without crutches for about 9 hours" while he was
in the bull pen.
After his time in the bull pen, he was taken to a cell in the reception area.
He still was not given the crutches while he was in his cell. He stated that
"the procedure at reception is that everyone has to move at the same time....up
and down stairs...I had the crutches then, but up and down the stairs....I fell
a couple of times."
On May 28, 1997 he arrived at Mt. McGregor Correctional Facility (hereafter Mt.
McGregor), where he was admitted to the hospital building for a routine
examination. The head nurse said he couldn't walk around the prison on crutches
because of the terrain. While in Mt. McGregor's infirmary for approximately two
weeks, Claimant alleged, he received no medical treatment because the staff was
reluctant to interfere with "another doctor's care." He stated he "washed his
own foot because they didn't want to touch him." Claimant testified that "now"
he was "stressed out...[his] foot was killing him...[he] didn't know when he was
going to see his own doctor, [he was] walking around with crutches numb and in
pain in [his] foot, trying to get the superintendent's name." Under those
"stressed out" circumstances, he "got in a fight with an officer ", and a
misbehavior report was written up.
Thereafter, he went back to Downstate for "another day." He testified that the
"same thing happened", that is, he was "put in the bull pen, no crutches, etc."
He returned to Sing Sing "mentally stressed" with his foot "killing" him. He
put in for "sick call" right away and received his medication. Additionally, his
doctor examined him and "pulled the pin out." After x-rays were taken, he was
given a cane, and told to "try to walk on the foot." The x-rays revealed "no
problems with his foot," despite his "ordeal," and he was prescribed Tylenol for
pain. To this day, Claimant said, he feels a "numbness" in his toe, but he is
Claimant proffered several documents for admission into evidence. Medical
records, including lab reports, his Ambulatory Health Record (hereafter AHR) and
progress notes for the period from on or about March 27, 1997 through June 9,
1997 were admitted. [EXH.1]. Read in isolation, these records are somewhat
descriptive of his condition at the time, but without the benefit of medical
testimony there is no real connection which can be made between the conditions
described - where they are legible - and any legal causation issues. Indeed,
the Court notes that the progress notes seem to reflect a continuous course of
care, and awareness of Claimant's physical limitations. Whereas Claimant had
testified that "no one would touch him" at Mt. McGregor, the progress notes
describe prescription of certain ameliorative ointments for the care of his
foot, as well as the administration of same. [
, Progress Notes at Mt. McGregor for 5/28/97 - 6/9/97]. The
following information written on the "Admission & Discharge Summary" for Mt.
McGregor, is also interesting. On May 28, 1997 the writer notes: "Amazing story
of inmate having surgery on...[left] foot at Sing Sing CF on 4/28/97. Has pin
in place post-op and is on crutches for ambulation - where he now drafts in to
MMCF! Classified in Camp! Disposition will now be the problem. Housed in
infirmary; awaiting Podiatric...[follow up]." [Ibid
Admission & Discharge Summary dated 5/28/97 and 6/9/97]. The notation for
June 9, 1997 by the same writer indicates: "Stable. Arrangements (finally) made
to transfer back to Sing Sing for...[follow up]."
Directive Number 4918, issued by New York State Department of Correctional
Services (hereafter DOCS) on August 1, 1996, was also offered by Claimant and
admitted. [EXH. 3]. This directive offers "guidelines to assure continuity of
health care to inmates during the transfer process from one facility to
., Page 1]. It includes suggestions concerning what
information should be provided upon transfer, and with respect to the "inmate
that cannot or should not be moved (refer to Health Services Policy # 1.17,
‘Medical Hold.'..." [Ibid
., Page 2].
The AHR pertinent to Sing Sing covers the dates from April 28, 1997 through May
16, 1997, and picks up in Sing Sing on June 11, 1997. [EXH. 1]. The notation
from June 11, 1997 at 10:40 am indicates: "Incoming draft pin in...[left]
foot...alert, resp[onsive,] in no acute distress, s/p foot surgery 4/28/97..."
No other witness 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 (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...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 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.
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, however, 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, the
transfer to Mt. McGregor - a very hilly facility - added to Claimant's recovery
time, based upon the Claimant's uncontradicted testimony it was at the very
least ill- advised, and caused the Claimant some temporary discomfort he might
not have suffered otherwise.
By its own directives, DOCS' transfer of this Claimant while the need for
post-operative follow up was still being noted in the medical record, amounts to
a compensable breach of duty chargeable to the Defendant. By his own testimony,
Claimant has not suffered any permanent injury, nonetheless the Court is
convinced that there was some degree of suffering attributable to the
Defendant's failure to follow its own recommendations for the retention and care
of inmates in its custody. Claimant is awarded $300.00 for his past pain and
Defendant's motion to dismiss, upon which decision was reserved on at trial, is
Let judgment be entered accordingly.