New York State Court of Claims

New York State Court of Claims

SHAW v. THE STATE OF NEW YORK, #2001-030-532, Claim No. 100172


Inmate's claim alleging medical malpractice, negligence and ministerial neglect dismissed for failure to establish a prima facie case. No expert testimony

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 29, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Joseph Shaw, the Claimant herein, alleges in Claim number 100172 that Defendant's agents committed medical malpractice on or about April 24, 1997 while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was held at Sing Sing on August 31, 2001.

Claimant relied on the factual allegations contained in his claim, certain real evidence, and his own testimony at trial. He testified that on April 24, 1997 he asked to "see the eye doctor" who "was not available at that time,"[1]
because of pain and inflammation in his left eye. Instead, he saw Dr. Maw. Claimant asserted that Dr. Maw "didn't want to examine my eye, he just looked at it. He didn't put any gloves on his hands...we got into a debate [about the gloves] and I was sent back to my cell."
The doctor then sent "three of them was for ears." Claimant indicated he put the medication for use in ears in his eye. His eye "got worse." He claimed that use of this medication has harmed his eye to this day, and provided the court with the literature included with the prescribed drug. [Claimant's Exhibit "2", Hydrocortisone Literature from Falcon Pharmaceuticals]. The literature contains the warning that it should not be used in the eyes.

Claimant testified that he filled out many sick call requests, but testified he "received little or no care until...[he] saw Dr. Katz on June 19, 1997" for removal of a cyst on the inside and outside of his eye lid.

Claimant opined that "Dr. Maw prescribed drugs without properly examining..[me], causing...[my] condition to worsen."

According to his Ambulatory Health Record (hereafter AHR), and related medical records, Claimant was seen by medical personnel on April 19, 22 and 24, 1997; May 6,13,20,22,29, 1997; June 3,5,6,7,10,12 and 19, 1997. [Claimant's Exhibit "3"]. Notations as early as April 19, 1997 by medical personnel mention "...cyst on inner...[left] eye...area appears swollen and inflamed. No discharge, vision not occluded. ...[Left] eye irrigated with sterile isotonic solution. Inmate told to sign up for Monday sick call if symptoms persist." [
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 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...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 in support of any claim of malpractice. Claimant's testimony was belied, to some extent, by the medical records substantiating regular examinations by medical personnel. There was no testimony to show that these visits did not provide reasonable care, or even that Claimant suffered any damage. 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.

Additionally, from this record there is no indication that the actions of medical care givers amounted to simple negligence or ministerial neglect.
Coursen v New York Hospital, supra; Kagan v State of New York, supra. To the extent the claim can be read to assert such theories, any cause of action for negligence or ministerial neglect is also dismissed.
The Defendant's motion to dismiss for failure to establish a prima facie case, upon which decision was reserved at the time of trial, is hereby granted, and Claim number 100172 is dismissed in its entirety.

Let judgment be entered accordingly.

October 29, 2001
White Plains, New York

Judge of the Court of Claims

[1]All quotations are to trial notes or audiotapes unless otherwise noted.