New York State Court of Claims

New York State Court of Claims

JACARUSO v. THE STATE OF NEW YORK, #2002-019-011, Claim No. 97721


Claimant, an inmate appearing pro se, brings an action for negligent medical treatment of reattaching his ear that was severed in an assault. 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: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
July 2, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, John Jacaruso, an inmate appearing
pro se, alleges that he received negligent medical treatment from the State of New York, after he was the victim of an unprovoked assault while lawfully in the custody of the Department of Correctional Services at the Elmira Correctional Facility (hereinafter "Facility"). The trial of this Claim was held at the Facility on May 29, 2002.

Claimant testified that on November 6, 1997 he was in a physical education class located in the Field House of said Facility. While exercising on a floor mat, another inmate in Claimant's immediate vicinity was smoking a cigaret and blowing smoke on him. The Claimant, being an asthmatic, testified that he asked the other inmate to stop smoking. When the other inmate refused, an altercation ensued. Claimant's left ear was bitten off during the course of this altercation. Claimant alleges, without any substantiating form of medical proof, that due to the negligent medical treatment of the facility, the physicians at Arnot Ogden Hospital were unable to successfully reattach the portion of his severed left ear. Consequently, that portion of Claimant's ear became necrotic and had to be removed. Claimant now alleges he should be a candidate for reconstructive surgery of his left ear.

In sum or substance, it is Claimant's belief that if the piece of his ear had been properly frozen or refrigerated that it would have survived reattachment at the hospital sometime later. The Claimant believes that the piece of his ear was improperly stored in the time between its being bitten off and Claimant's transfer to Arnot Ogden Hospital for surgical reattachment. At the close of Claimant's case the State moved to dismiss for Claimant's failure to establish a prima facie case on which the Court reserved.

The State called Daniel Carpenter who for the past 21 years has been the Recreational Program Officer and who was supervising the weight area at the Facility on November 6, 1997. Mr. Carpenter observed a disturbance in the weight room and yelled for the inmates to stop. He noticed the argument escalate and that both the Claimant and Inmate Yager fell to the ground with Yager being on top of the Claimant. He immediately arrived at the scene of the incident and pulled Yager off of the Claimant and separated the two. He took Yager back to his office in order to isolate him. Mr. Carpenter noticed that the Claimant's left ear was cut badly. The witness was unaware of any prior problems between Inmate Yager and Claimant. He further stated that smoking is not permitted in the weight room and he has no recollection of authorizing smoking by Inmate Yager on this date. While he did not see Inmate Yager specifically bite off Claimant's ear, he did notice the severity of the injury and made sure that the Claimant was transferred for medical treatment to the hospital area of the facility. He testified that tickets were issued to Yager and the Claimant for fighting and that both were disciplined for the same.

The State also called Cheng Yin, M.D., a physician at the Facility who testified that on November 6, 1997 he treated the Claimant for a bite on the left ear. When Claimant arrived at the Facility hospital he had with him the piece of his left ear that had been bitten off. Because the ear was totally severed, Claimant was immediately referred to a plastic surgeon at Arnot Ogden Hospital to reattach the same. Dr. Yin testified that he cleaned the wound, stopped the bleeding, placed the piece of the severed ear in gauze in a sterile box on top of an ice bag. The doctor further testified that this is textbook procedure and, while Claimant may believe that portion of his severed ear should have been frozen, in reality freezing is not truly helpful. Rather, medical protocol requires the ear only be kept cold prior to reattachment.

The Claimant was transferred within one-half an hour of the incident to Arnot Ogden Hospital where the portion of his ear was reattached. Dr. Yin admitted that he could have done that himself, but his medical judgment was that plastic reconstruction was the protocol in this circumstance. Unfortunately, Claimant's ear later became necrotic and was removed at the Facility by plastic surgeon Dr. Maschio. Furthermore, the doctor opined that there is a high failure rate for this type of reattachment.

It is well-settled "[t]hat 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, 789, lv denied 76 NY2d 701). Generally, simple negligence is the appropriate theory to pursue when the alleged negligent act or omission is readily determinable by the trier 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 or 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 failing to properly preserve his severed ear. 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 of care were not met; that any medical provider that treated Claimant did not possess the requisite knowledge and skill; that any medical provider did not use reasonable care; or that any treatment rendered or denied harmed Claimant in any respect. In fact, to the contrary, this Court found the testimony of Dr. Yin to be most credible in his description of the proper procedure for preserving a severed ear. The Court finds that Claimant received the appropriate type of treatment in a timely manner and that the failure to reattach his ear was in no way related to any medical malpractice on the part of the facility.

To the extent that this Claim could also be construed to contain allegations based upon medical negligence, this Court also finds the proof lacking in this regard as well. There was nothing from this record from which the actions of the medical caregivers could be construed as negligent.
Consequently, as a result of the foregoing, the State's motion to dismiss that was renewed

at the conclusion of trial is now GRANTED and Claim No. 97721 is hereby DISMISSED.

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


July 2, 2002
Binghamton, New York

Judge of the Court of Claims