New York State Court of Claims

New York State Court of Claims

RIOS v. THE STATE OF NEW YORK, #2002-005-010, Claim No. 98674


Claimant alleges medical malpractice/negligence on the part of the Defendant. This decision deals with liability only. Due to lack of evidence and that there is nothing to suggest that the State is responsible for the Claimant's illness the claim is dismissed.

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:
Orlando Rios, Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 29, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant is an inmate under the custody and control of the New York State Department of Correctional Services (DOCS) and at all pertinent times herein was housed at the Auburn Correctional Facility (Auburn).

Claimant, an inmate proceeding
pro se, seeks damages for the alleged medical malpractice and medical negligence of the Defendant. This trial has been bifurcated (Motion No. M-62227, dated February 5, 2001). Claimant was given the opportunity to notify the Court of the identity of a medical expert, and having failed to do so, he was therefore precluded from offering any expert testimony (Motion No. M-64704, dated March 13, 2002).
On June 26, 1997, Claimant complained to the medical staff at Auburn about stomach pains and lower abdominal discomfort, including constipation and sharp pain in his abdominal region. The nurse who Claimant saw at sick call told him to drink lots of water, as she suspected that Claimant was passing kidney stones. Claimant had a long history (since the age of eight) of passing kidney stones and had passed his most recent stone on April 28, 1997. Claimant testified that he explained to the nurse that this pain was different, but that he was only given milk of magnesia and twenty "Advils," and then returned back to his cell. Claimant returned to the infirmary twice more that day (June 26, 1997) with similar complaints and was admitted to the infirmary later that night. He was given a repeat dosage of the milk of magnesia and pain medication. Claimant was discharged the next day (June 27, 1997). One week later, on July 4, 1997, Claimant requested emergency sick call, but was allegedly told he could not be seen because it was a holiday. On July 7, 1997, Claimant again requested emergency sick call and when he arrived at the infirmary he was seen by two nurses and sent for x-rays. Claimant suggests, as a layperson, that the only purpose for the x-rays was to see if he was passing kidney stones. Claimant was then discharged from the infirmary.

According to Claimant's Ambulatory Health Record (Exhibit 1), he was seen three times in the infirmary on July 7, 1997. The last notation in the Ambulatory Health Record for July 7, 1997, states that Claimant refused to be admitted to the infirmary and that he declined to sign the refusal form. Claimant testified that he refused admittance because there were no bed sheets, the room was torn apart for construction, and the guards were being belligerent towards him. On July 8, 1997, Claimant requested to be readmitted into the infirmary and to see Dr. Graceffo. Claimant was seen by the medical staff at Auburn and an appointment was made to see Dr. Graceffo the following morning. On July 9, 1997, Claimant was seen by a nurse and then Dr. Graceffo. Claimant's testimony was that he was admitted to the infirmary and then sent to a Syracuse hospital where tests were taken, and he was diagnosed with appendicitis. Claimant further testified that on the next day (July 10, 1997) he was rushed into surgery for appendicitis but it was discovered that Claimant had a mass in his lower abdomen, so the incision was changed, and the mass was removed and was thought to be cancerous. A total of seventy centimeters (cm) of Claimant's ilium and colon were removed. Claimant concedes that 20-30 cm were "bad" and had to be removed. Claimant testified that he was told by doctors at Syracuse that 70 cm of his ilium and colon had to be removed in order to have "two good ends" of his intestinal tract meet. Claimant asserts that the colon was never involved and should not have been removed, and submits that he will have health problems for the rest of his life.

Claimant's stated causes of action are:
1) That the Auburn facility medical staff did not give Claimant proper treatment from June 26, 1997 to July 9, 1997. If Auburn had examined him properly and listened to him he would not have needed to have had surgery. Delayed treatment allegedly caused his condition to deteriorate and caused him to have unnecessary surgery, and

2) that the hospital removed 70 cm of his intestine when they really only needed to remove 20-30 cm.
It is a fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons (
Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701). Claimant, however, bears the burden of establishing that the care and treatment afforded to him by the State constituted a deviation from the applicable standard of care (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804), and evidence that the alleged deviation proximately caused his injuries and/or other damages (Parker v State of New York, 242 AD2d 785).
In situations such as the one alleged here, where the Claimant is arguing that he was deprived of appropriate and timely medical attention and treatment, such a claim must be supported by expert testimony (
Duffen v State of New York, 245 AD2d 653, lv denied 9 NY2d 810). A pro se claimant has the same responsibility as any other claimant to provide expert medical testimony, when the issue is not one of common knowledge and the fact finder requires expert testimony (id). In this case Claimant is alleging that he was not given proper treatment from June 26, 1997 through July 9, 1997, while being housed at Auburn, and that the improper treatment he was given caused him to have unnecessary surgery. This assertion inherently goes to the issue of treatment, and therefore expert testimony is required to establish any medical malpractice.
Claimant also argues that the State is guilty of medical negligence, and that it is obvious to a layperson from Claimant's medical records, that his treatment at Auburn was delayed. Cases won on the theory of medical negligence are restricted to alleged negligent conduct that is readily determinable by the trier of facts
on common knowledge alone (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). Examples of the few cases that have succeeded on the theory of medical negligence include: scalding a patient with a hot water bottle (Phillips v Buffalo General Hospital, 239 NY 188), leaving an electric lightbulb under the sheets (Dillon v Rockaway Beach Hospital, 284 NY 176), and leaving a postoperative patient unattended in a bathroom (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254).
I do not find in the case at hand that the purported delay in treatment is obvious from the use of common knowledge alone. Rather, I believe that the question of whether Claimant was afforded proper medical treatment for his symptoms is an incredibly specific medical question that would have to be proven through the use of expert testimony. Furthermore, I find that there was a constant involvement from the medical staff at Auburn in attending to Mr. Rios' complaints. According to the Ambulatory Health Records (Exhibit1) Claimant was seen several times in the days leading up to his surgery. He was attended to by both nurses and doctors who examined him and prescribed different medications to attempt to alleviate his symptoms. This care continued until the doctor noticed a change in Claimant's complaints and condition, at which point he ordered that Claimant immediately be sent to an outside facility for further examination.

Theoretically, even if Claimant was able to show that there was a delay in care at the Auburn facility, he has failed to prove that the delay was a proximate cause of his surgery or that the delay was the cause of the allegedly excessive amount of intestinal tract being removed. In footnote one on page two of his claim Claimant instructs that the type of Crohn's disease that he suffers from developed quite suddenly. I have seen nothing in any of the records or testimony that gives me even an inkling of proof that would lead me to conclude that there was any delay in the detection of Claimant's development of Crohn's disease or that earlier detection would have prevented Claimant from having to undergo surgery.

There is no evidence before me that implicates the State's culpability in Claimant's unfortunate affliction with Crohn's disease and there is nothing before me that suggests that the State's provision of medical care was anything but appropriate. In any event, nothing I could say or the doctors could do can erase the reality of Claimant's permanent medical condition. While I empathize with Claimant's desire to find someone responsible, I cannot blindly hold the State liable.

Accordingly the claim must be and hereby is dismissed. All motions not heretofore ruled upon are now denied.

Let judgment be entered accordingly.

July 29, 2002
Rochester, New York

Judge of the Court of Claims