New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2002-019-008, Claim No. 100821


Inmate Claimant alleged two causes of action resulting from being struck in the eye by debris in facility welding shop. Claimant failed to establish that holes in curtains separating booths constituted dangerous condition or that State had notice thereof. Claimant also failed to introduce any expert proof at trial relative to medical malpractice cause of action alleging optometrist's improper removal of foreign object from his eye. Claim 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:
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney Generalof counsel
Third-party defendant's attorney:

Signature date:
July 10, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Roy Green, alleges two separate causes of action against the State of New York (hereinafter "State"). The first cause of action alleges an injury which occurred while Claimant was welding and was struck in the eye by a spark at the north complex area vocational welding shop at the Sullivan Correctional Facility (hereinafter "Facility"). The second cause of action alleges that it was medical malpractice to allow Dr. Robert Wurzel, a licensed optometrist, to remove the foreign object lodged in Claimant's eye, instead of transporting Claimant outside the Facility for treatment by a licensed Ophthalmologist. The trial of this Claim took place at the Sullivan Correctional Facility on February 25, 2002.

Claimant testified that on June 2, 1999 he was working in the welding shop at the Facility. Claimant described the layout of the welding shop (St. Ex. A), and described the welding area he was working in as being separated from numerous other welding booths by protective welding curtains. Claimant stated that these curtains had numerous holes in them which have been burned through over time as a result of the welding process. While Claimant was working in Booth 2, he was wearing a variety of protective clothing including head gear, with a full face mask, but was not wearing protective goggles. Apparently while Claimant was welding in Booth 2, a spark and/or piece of debris entered from Booth 3 through a hole in the welding curtain. This piece of debris found its way into the back of Claimant's helmet ricocheting around the face mask until it lodged in his eye. Claimant immediately exited the booth throwing off his face mask and dropping the welder. He ran to the eye station and rinsed his eyes. Claimant testified that Mr. Cooper, the shop foreman, looked at Claimant's eyes and that his eyes were beet red. Claimant acknowledged that he was not wearing safety glasses because upon wearing goggles or safety covers his eyeglasses would fog. Consequently, he was wearing only a safety helmet and face shield and did not have the appropriate goggles on. Claimant also stated on cross-examination that he had complained to Mr. Cooper approximately nine months prior to his injury about the condition of the curtains separating the welding booths and the number of holes contained therein.

Immediately after his injury, Claimant was taken to the Facility infirmary and upon examination by the nurses at the infirmary, his eye was irrigated and a foreign object was discovered in the left eye. The foreign object seemed to be a small piece of plastic substance which was removed by optometrist Dr. Robert Wurzel. Following the removal of the object from the Claimant's eye, Claimant was given sterile optical eye drops, Tylenol, and antibiotics. Claimant was subsequently seen on June 14, 1999 at the infirmary by Dr. Sidorowicz who gave the Claimant an additional eye exam and found nothing wrong with Claimant's eye. He simply applied ointment and ended treatment. However, Claimant subsequently filed a grievance and got a continuation of his ointment five days later. Claimant subsequently saw an Ophthalmologist sometime in December of 1999 and was still taking ointment and eye drops and claimed that his eye was painful and light sensitive.

Claimant's attorney also read, in portion, the examination before trial of Thomas Cooper, the shop foreman, who testified in sum or substance at page 27, that there were holes in the welding curtains separating the welding booths and that he had seen them and was aware of the same.

The State called W. Sidorowicz, M.D., medical director at the Facility for the past ten years. He was familiar with the Claimant's eye injury and saw the Claimant for follow-up. He testified that he saw no residual injury to the eye. However, he did schedule follow-up review and treatment with an Ophthalmologist. Dr. Sidorowicz also testified that on the date of the accident, June 2, 1999, medical records show that a small foreign body was in fact removed from the Claimant's left eye, however this was done without touching the eye itself. Also, further review of the ambulatory health records (St. Ex. E) shows that on June 14, 1999
there was a follow-up with no suspicious infection or foreign body, on July 6, 1999 Claimant was still complaining, July 24, 1999 optometrist found nothing but recommended continuation of artificial tears and ointment. The records also show that the Claimant later refused to be transferred to an Ophthalmologist for a consultation. However, he ultimately did agree and on consultation with an Ophthalmology specialist no objective eye damage was seen and the Ophthalmologist recommended regular follow-up at one year intervals. Dr. Sidorowicz opined that Claimant suffered no permanent injury to his eye as a result of this incident.

1. Negligence
It is well-settled that "[w]hen the State, through its correctional authorities, directs a prison inmate to participate in a work program during incarceration, it owes the inmate a duty to provide reasonably safe machinery and equipment with which to work and adequate warnings and instructions for the safe operation of such machinery and equipment [citations omitted]." (
Kandrach v State of New York, 188 AD2d 910, 913). However, "[w]hen an inmate fails to use ordinary care and pursues a dangerous course of conduct, he must take some responsibility for his own negligence [citations omitted]." (Carter v State of New York, 194 AD2d 967).

Claimant failed to establish the existence of a dangerous condition or that the State was on notice of a dangerous condition. Claimant, by his own testimony, established only that there were numerous holes in the welding curtains separating each booth, that the State, through Mr. Cooper, was aware of the same. However, the record is void of any testimony, from Claimant or otherwise, that there was any notice to the State that the condition of these curtains was so poor that they failed to function as intended — namely preventing sparks and debris kicked up during the welding process from flying freely between the numerous adjacent welding booths. Additionally, Claimant offered no evidence that the use of the equipment that he was provided constituted a dangerous condition or that the welding apparel was not reasonably safe equipment. No expert testimony was provided to establish that the welding apparel that Claimant was provided was equipment that was not reasonably safe or that the inmate was forced to work in a workplace that was not reasonably safe. Moreover, Claimant here clearly ignored a danger of which he was fully aware, namely welding without the use of safety goggles where they were readily available, contrary to the stated shop safety policy. (Martinez v State of New York, 225 AD2d 877). Since the State is not an insurer of inmate safety and negligence cannot be inferred solely from the happening of an accident, Claimant's allegation that the State negligently caused or contributed to this injury is without merit.

II. Medical Malpractice

It is well-settled, "[t]hat the State has a duty to provide reasonable and adequate medical care to the inmates at its prisons." (
Rivers v State of New York, 159 AD2d 788, 789, lv denied 76 NY2d 701). Generally, simply negligence is the appropriate theory to pursue when the alleged negligent act or omission is readily determined by the tier of fact based on common knowledge. (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254 [leaving postoperative patient unattended]). However, if a patient's treatment, or lack thereof, is in controversy then the case is more appropriately premised upon the more particularized theory of medical malpractice. (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). A person asserting medical malpractice has the burden of proving a deviation from accepted practice and evidence that such deviation was a proximate cause of the injury sustained. (Macey v Hassam, 97 AD2d 919). Moreover, a claimant must establish the medical provider either did not possess or did not use reasonable care of best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804).

Here, Claimant alleges the State improperly treated him by allowing an optometrist, rather than an ophthalmologist, to remove the foreign object from his eye. In this Court's view, Claimant's allegations are better suited to a medical malpractice theory inasmuch as they relate to his medical treatment which are not matters within the common knowledge of this Court. (
Scott v Uljanov, 74 NY2d 673; Duffen v State of New York, 245 AD2d 653, lv denied 91 NY2d 810). As such, in order to be successful on a medical malpractice claim, Claimant was required to present expert medical testimony in support of his claim. (Macey v Hassam, 97 AD2d 919). Rather, Claimant offered only his own subjective testimony and opinion as to what medical treatment should have been provided by the Facility. Quite simply, in the absence of any testimony from a medical expert that the medical treatment and care that Claimant received was improper, the Court has no proof from which it might conclude that accepted standards or care were not met; that any medical provider that treated Claimant did not possess the requisite knowledge and skill; and any medical provider did not use reasonable care; or that any treatment rendered or denied harmed Claimant in any respect. To the contrary, the testimony provided by Dr. Sidorowicz on behalf of the State satisfied the Court that the actions of Dr. Wurzel, the optometrist who removed the debris from Claimant's eye, were authorized, proper, and appropriate under the circumstances. In short, Claimant's own unsubstantiated assertions are insufficient to establish a prima facie case of medical malpractice.

For the foregoing reasons therefore, Claim No. 100821 is hereby DISMISSED.

All other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.


July 10, 2002
Binghamton, New York

Judge of the Court of Claims