This is the claim of Brett Toney, which was tried at Mid-Orange Correctional
Facility, where Mr. Toney testified on his own behalf. There were no other
witnesses for either side. The claim arises from injuries that Toney allegedly
suffered during an assault at a Suffolk County correctional facility, shortly
after which he was transferred to the State correctional system. He complains
of the medical treatment he thereafter received for a rib injury, as well as his
"top bunk" assignment from May 11 to June 5, 2000.
Claimant testified that when he was received at Downstate Correctional Facility
on May 11, 2000, he was suffering from pain on the left side of his ribs and in
his neck and back, numbness in his left arm and hand, and bruises on both arms.
He recalled that personnel at Downstate documented the injuries during his
reception on May 11. The medical records he submitted commence with the date of
May 15, 2000 (cl. ex. 1).
Toney testified that on May 19, he was seen by a doctor at Downstate to whom he
complained of the aforementioned injuries and who told him that x-rays of his
rib cage would be taken. His medical records for that date refer to neck and
arm pain and bruises on his arms, but do not contain any references to rib pain
or to an order for an x-ray of his ribs. They do contain an order for a spinal
x-ray and for the prescription of a painkiller that had to be ordered. Toney
testified that the painkiller did not help much. On the evening of May 19, he
was transferred to Mid-Orange Correctional Facility, where he testified he was
assigned a top bunk "with no regard to my medical condition." He explained that
the pain in his ribs was extreme and made it difficult to climb to the top bunk.
In fact, he noted that once atop his bed, he would refrain from leaving to use
the bathroom because of the pain.
On May 20, Toney was again seen at the Mid-Orange medical facility, and his
medical records for that date contain the first reference to pain in his ribs,
next to which there is the notation "states he does not believe x-ray report."
No additional evidence was offered with respect to any such previous x-ray.
Toney recalled that he told medical personnel at that time that he thought he
had a broken rib and was having difficulty climbing to his top bunk. He
testified that he was told he would be seen by a doctor on June 9, and that for
the time being, he would have to remain in the top bunk. No references to his
bunking assignment are contained in the medical records for May 20.
On May 22, Toney went back for medical treatment. He testified that he again
complained of his injuries and of the top bunk assignment, and that once more
his complaints were ignored. While the May 22 medical report does indicate that
claimant complained of his injuries, there is no reference to his bunking
On May 25, claimant paid another visit to the medical facility. His medical
record for that date contains the reference "I can't stay on the top bunk."
This is the only bunking reference contained in his records.
On the next day, May 26, Toney was seen by a doctor. He asserts that the
doctor asked him to touch his knees, and when he was able to do so, told him
this meant he had no broken bones, nerve tissue or muscle damage. The medical
records for May 26 indicate that claimant complained of "occasional pain to
dorsal back," and that no treatment was indicated.
According to Toney, on June 4, he sent a memo to the nurse administrator at
Mid-Orange complaining of a lack of treatment and asking to see a different
doctor. He did not attempt to introduce his memo into evidence, but did
introduce what he asserted was a response (see cl. ex. 2), a memo stating in
relevant part that Toney had been scheduled to see a doctor on June 9.
On June 5, Toney was reassigned to a bottom bunk when he was transferred to
another housing unit. He asserted that this was by happenstance, and not
related to his medical condition.
On June 9, he was seen by the same doctor he had seen on May 26. He recalled
that the doctor told him he was not injured and when he asked for an explanation
of the diagnosis, he was asked to leave. His medical record for that date
states that claimant complained of occasional feelings of numbness to his left
arm, that the arm was "essentially normal," and that no treatment was
Toney testified that he thereafter filed a grievance, complaining that he was
not getting appropriate medical treatment or being treated compassionately. He
recalled that the grievance "was unanimously accepted in part," and he was then
seen by a different doctor. No documentation as to the grievance or the
response were introduced.
On June 19, 2000, Toney was seen by a different doctor, who, he testified,
ordered x-rays of his left rib cage. The medical records indicate that x-rays
were ordered for Toney's spine and left rib cage and taken on July 6. The
result for his rib cage x-ray was that there was a "healing fracture left
th rib laterally in satisfactory position."
As to Toney's medical treatment, he was seen by medical personnel, including
doctors, on nine separate occasions between May 11 and July 6, 2000. Moreover,
he presented no expert testimony that accepted standards of medical care were
not met, which would be required for him to prevail in a case such as this.
Lyons v McCauley
, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv
92 NY2d 814, 681 NYS2d 475 (1998).
As to his upper bunking assignment from May 11 to June 5, 2000, Toney did not
prove that he had a medical condition requiring lower bunking. In addition, he
provided no evidence as to the policies and procedures in place for bunk
assignments or to suggest that any such policies and procedures were not
For the foregoing reasons, claim no. 103037 is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY