New York State Court of Claims

New York State Court of Claims

WHIPSET v. THE STATE OF NEW YORK, #2002-013-519, Claim No. 100762


Claim is dismissed where the record did not support inmate claimant's allegations of medical negligence/malpractice and where no expert testimony was presented.

Case Information

TIMOTHY WHIPSET The caption has been changed to reflect the correct spelling of Claimant's name.
Claimant short name:
Footnote (claimant name) :
The caption has been changed to reflect the correct spelling of Claimant's 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:
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 25, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, Timothy Whipset, alleges that in late 1998, while incarcerated at Livingston Correctional Facility (Livingston), he received negligent and inadequate medical care by employees of the Department of Correctional Services (DOCS). This medical malpractice and negligence action ensued.

On October 14, 1998, the Claimant was injured playing football. According to his claim, he fractured his hand. Claimant's trial testimony, the Ambulatory Health Record (Exhibit 1), and the NYSDOCS Request & Report of Consultation (Exhibit 2), establish that it was the fifth, or small finger, on Claimant's left hand that was injured.

Claimant reported his injury to the officer on duty and was escorted to the infirmary. Claimant testified that his fifth finger appeared bent back and pointed out at an angle. Claimant's finger was splinted at the infirmary, and he was instructed to use ice and to take Advil (Exhibit 1). Claimant returned to the infirmary the following day, October 15th, with complaints of pain up to the PIP (proximal interphalangeal) joint. An examination revealed poor range of motion and some swelling at the knuckle. The finger was wrapped in a splint and Claimant was referred for an x-ray (Exhibit 1).

On October 16, 1998, an x-ray was taken at Groveland Correctional Facility (Groveland). A fracture was apparent. The doctor called the infirmary and instructed the nurse to apply a splint. A doctor was to see Claimant the following Monday for evaluation. According to the Ambulatory Health Record, a splint was applied and Claimant was excused from work at the mess hall (Exhibit 1). Claimant testified at trial, however, that the nurse failed to splint his finger on October 16.

On October 19, 1998, a cast and sling were applied. The diagnosis was fracture of the left little finger (Exhibit 1). Claimant next appeared in the infirmary on October 22, complaining that the cast was sliding and that he was having discomfort with it. The temperature, movement and color of Claimant's little finger were noted in the Ambulatory Health Record as being within normal limits (Exhibit 1).

Claimant was first seen in the Orthopedic Clinic on November 3, 1998. According to the report of Doctor Soliman, the fracture seemed to be undisplaced and the neurovascular status seemed to be intact. Because there was no x-ray technician available on November 3, Doctor Soliman recommended that Claimant's primary care physician, Doctor Agustin, remove the cast, get x-rays of the hand without the cast, and arrange to have Claimant return to the Orthopedic Clinic on November 5 so that Dr. Soliman could review and evaluate the fracture, alignment and joint movement (Exhibit 2).

The cast was removed in the infirmary on November 4 and Claimant returned to the Orthopedic Clinic on November 5 for evaluation (Exhibit 1). The consultant report dated November 5 indicated a healing fracture (Exhibit 2).

Claimant testified that he returned to work in the mess hall on or about November 4, as soon as the cast was removed. According to the Ambulatory Health Record, however, someone from the mess hall called the infirmary on November 23 requesting information on Claimant's ability to return to work. The record indicates that Doctor Agustin released Claimant to return to work on November 30 (Exhibit 1).

Claimant continued to be seen in the infirmary and in the Orthopedic Clinic. In January 1999, he was referred to Wende Correctional Facility for physical therapy (Exhibit 1). During the period from November 1998 through January 1999, additional x-rays were taken. According to Doctor Riggio's report, the x-ray taken on November 9, 1998 showed "a healing oblique fracture involving the proximal phalanx" with "fracture fragments" being "in excellent position" (Exhibit 2). A subsequent x-ray taken on December 23 revealed a moderately healed fracture of the proximal phalanx of the fifth finger (Exhibit 2). X-rays were also taken on January 14, 1999, which revealed an oblique undisplaced fracture involving the proximal phalanx. The x-ray report noted that the bony architecture appeared normal (Exhibit 2).

According to his claim and to his trial testimony, Claimant is alleging that his fifth finger is deformed because when the cast was removed on November 4, 1998, it was not replaced with a new cast or splint to ensure proper healing and to prevent deformity, in spite of the fact that subsequent x-rays revealed that his finger was still broken. In addition, Claimant is alleging that he continually complained of pain and was not given any medication to relieve the pain.

At the conclusion of Claimant's testimony, the State moved to dismiss the claim on the grounds that Claimant had failed to prove a prima facie case of medical malpractice, as there was no expert testimony setting forth the applicable standard of care and no expert testimony to demonstrate a deviation from that standard. In addition, Defendant moved to dismiss any claim that could be construed as sounding in medical negligence on the grounds that there was no proof that any adverse effect was caused by any negligence on the part of the State. Decision on this motion was reserved at trial.

Initially, I found it necessary to determine whether Claimant's allegations were based on a theory of medical negligence or on a theory of medical malpractice. The theory of medical negligence is relegated to cases where the alleged negligent acts are readily determinable by the trier of fact based on common knowledge. However, when the propriety of the treatment received is called into issue, the more specialized theory of medical malpractice is applicable (
Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256; Hale v State of New York, 53 AD2d 1025 lv denied 40 NY2d 804).
In a medical malpractice case, Claimant has the burden of proving that the medical provider did not possess or did not use reasonable care or best judgment (
Hale v State of New York, supra). Moreover, the Claimant has the burden of proving a deviation from accepted standards of care and must produce evidence that the deviation was a proximate cause of the injury sustained. To meet this burden and to make a prima facie case of medical malpractice, Claimant is required to present expert medical testimony (Macey v Hassam, 97 AD2d 919; Kennedy v Peninsula Hosp. Center, 135 AD2d 788).
In the present claim, Claimant alleges that the State's medical providers caused a deformity to occur in his fractured finger when it was neither recast nor placed in a splint after the initial cast was removed. Although Claimant testified that x-rays taken after the cast was removed showed that his finger was still broken, the proof before me does not support this. Instead, all of the x-ray reports contained in the DOCS report (Exhibit 2) regarding x-rays taken after the cast was removed revealed a healing fracture.

Claimant also testified that he was forced to return to work prematurely on or about November 4, 1998, immediately after the cast was removed. Once again, the proof before me does not support this allegation. In fact, the Ambulatory Health Record (Exhibit 1) indicates that Claimant was not released to return to work until November 30, 1998.

In any event, the critical issue is whether or not the failure to recast the finger and/ or the decision to allow the Claimant to return to work caused, or was a substantial factor in contributing to, the deformity of the finger. This issue does not involve matters within the common knowledge of this Court, but calls into question the propriety of the treatment given. As a result, this cause of action must be characterized as sounding in medical malpractice rather than in medical negligence (
Armstrong v State of New York, 214 AD2d 812, lv denied 86 NY2d 702). As indicated above, a medical malpractice cause of action requires expert testimony. No such expert medical testimony was presented, and thus Claimant has failed to establish a prima facie case of medical malpractice.
With respect to Claimant's allegation that he was denied medication, Claimant acknowledged at trial that he received Motrin, but stated that it was not given to him until thirty days after his injury. He provided no explanation for why this would have occurred, and his testimony was contradicted by several entries in the Ambulatory Health Record (Exhibit 1), showing that he was given Advil, Ibuprofen and Motrin on a number of different occasions. I have been given no reason to question the adequacy of these records. The Claimant has thus failed to meet his burden of proving by the preponderance of credible evidence that he was denied pain medication. Moreover, the question of whether and to what extent medications, or the lack thereof, contributed to any injury is not a matter which the trier of fact can decide in the absence of expert testimony (
Duffen v State of New York, 245 AD2d 653, lv denied 91 NY2d 810).
Finally, to the extent that this claim could be construed as containing allegations based upon medical negligence, I find the proof lacking in this regard as well. There was nothing in the evidence to establish negligence on the part of the medical care providers, nor to establish that anything done or not done by the medical care providers caused or contributed to the deformity of the Claimant's finger.

Accordingly, the State's motion to dismiss, on which decision was reserved at trial, is granted and the claim is dismissed.


October 25, 2002
Rochester, New York

Judge of the Court of Claims