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
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 medications...one 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
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. 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
; Kagan v State of New
. To the extent the claim can be read to assert
such theories, any cause of action for negligence or ministerial neglect is also
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.