Claimant alleges that during his incarceration at Sing Sing Correctional
he received inadequate medical care
from August 23, 1999 through October 21, 1999 . Specifically, claimant asserts
that he was denied treatment for facial paralysis that was eventually diagnosed
as Bell's Palsy.
"[A] duty of ordinary care is owed by prison authorities to provide for the
health and care of their charges" (
Gordon v City of New York
, 120 AD2d 562, 563, affd
70 NY2d 839;
Cauley v State of New York
, 224 AD2d 381). The theory of simple
negligence is restricted to those cases where the alleged negligent acts are
readily determinable by the trier of the facts on common knowledge (see
Weiner v Lenox Hill Hosp.
, 88 NY2d 784; Rey v Park View Nursing
, 262 AD2d 624; Coursen v New York Hospital-Cornell Med. Center
114 AD2d 254, 256). However, where the treatment received by the patient is an
issue, the more specialized theory of medical malpractice must be followed
(see Twitchell v Mackay
, 78 AD2d 125; Hale v State of New
, 53 AD2d 1025). To establish a prima facie case of medical
malpractice, a claimant must prove, inter alia
, that defendant departed
from good and accepted medical practice and that such departure was a
substantial factor in producing the alleged injury (see Tonetti v
Peekskill Community Hosp.
, 148 AD2d 525; Mortensen v Memorial Hosp.
105 AD2d 151). A departure from good and accepted medical practice cannot be
inferred from expert testimony; rather the expert must expressly state, with a
degree of medical certainty, that defendant's conduct constitutes a deviation
from the requisite standard of care (see Stuart v Ellis Hosp.
AD2d 559; Sohn v Sand
, 180 AD2d 789; Salzman v Alan S. Rosell, D.D.S.,
, 129 AD2d 833).
In the instant case,
claimant alleged that defendant failed to provide him with adequate medical
care. This is belied by the record. Claimant's medical records of August 23,
1999 through May 4, 2001 show that claimant received ongoing treatment and
medical care for his condition. Significantly absent from claimant's case was
any competent medical evidence, either from a treating physician, or from an
expert whose opinion was based upon the available medical records. Without such
evidence, claimant's own unsubstantiated assertions and speculations were
insufficient to establish merit and a prima facie case (see Wells v
State of New York
, 228 AD2d 581; Mosberg v Elahi
, 176 AD2d 710
80 NY2d 941; Quigley v Jabbur
, 124 AD2d
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 103984.