New York State Court of Claims

New York State Court of Claims

CARRELARO v. THE STATE OF NEW YORK, #2002-019-022, Claim No. 99758


Claimant failed to establish medical malpractice claim based upon Claimant's use of outdated eye cream dispensed by correctional facility medical personnel; Claim dismissed.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 General,of counsel
Third-party defendant's attorney:

Signature date:
August 12, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Batista Carrelaro, a
pro se inmate, alleges he was injured due to negligent medical treatment he received while in the custody of the Department of Correctional Services at Southport Correctional Facility (hereinafter "Facility"). The trial of this Claim took place at the Elmira Correctional Facility on July 30, 2002.

Claimant testified, via an interpreter, that on or about January 5, 1999, while incarcerated at the Facility he requested a refill for eye drops he previously received at other State correctional facilities. Claimant testified that he was informed by Nurse Dougherty, a nurse practitioner, that eye drops were not allowed in his cell per order of the Superintendent. Since he was not allowed to have eye drops he was told by Nurse Dougherty that he would order and prescribe an eye cream called Lacrilube which comes in a tube and not a dropper.

Several days thereafter, approximately January 12, 1999, Claimant was seen at the morning sick call and was provided with the Lacrilube eye cream as prescribed by the Facility Medical Director, John Alves, M.D. Claimant alleges he was not told how to use the medication or given any warnings as to side effects. However, his biggest complaint was the medication provided had expired approximately two months earlier, bearing an expiration date of November 1998. Upon drawing this to the attention of the Facility medical staff, new Lacrilube was ordered for Claimant from a local pharmacy. As a result, Claimant testified his use of this outdated medical cream did not relieve his dry eyes, and instead worsened his condition. Claimant offered no medical testimony or other proof to support the allegations his eye condition was aggravated as a result of using outdated eye cream. Claimant rested.

The State called as its only witness the Facility's Medical Director, John Alves, M.D., who has been the medical director at the Facility for the past seven years. Dr. Alves knows the Claimant and treated the Claimant during his stay at the Facility from June of 1998 to February of 1999. Dr. Alves confirmed the eye drops Claimant received at other facilities were not allowed in the Special Housing Unit due to the fact that the plastic bottles can be used to propel bodily fluids at correction officers. According to the medical records, Claimant was given the option of receiving eye drops, but only if administered by a facility nurse or medical staff. However, on January 5
th, 6th, and 7th Claimant refused to receive eye drops (both the morning and afternoon dosages) which were to be administered by a facility nurse. Consequently, on January 7, 1999, Claimant's eye drops were discontinued for his noncompliance. As an alternative, on January 8, 1999, Claimant was given Lacrilube for his dry eye condition; a cream which Claimant could administer to himself on a daily basis or as needed. However, the Lacrilube given to the Claimant on January 8, 1999 was in fact outdated by two months. Consequently, a new supply of Lacrilube was ordered from a local pharmacy and supplied to the Claimant. Dr. Alves testified that using outdated eye cream would not treat Claimant's dry eye condition, but would otherwise cause no damage or aggravation of any pre-existing eye condition. Moreover, upon subsequent examination, Claimant's eye appeared to be absolutely normal. Since that time Claimant has been reexamined, and a review of his medical records confirms there has been no injury or deterioration to Claimant's vision since his arrival at the Facility.

Claimant alleges negligent medical treatment and urges the Court that a medical expert's testimony is not required where a lay person relying on common knowledge and experience can find that harm would not have occurred in the absence of negligence. However, the Court finds under these facts, Claimant's arguments to be without merit.

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, 53 AD2d 1025).

Here, Claimant alleges the State improperly prescribed outdated eye cream which
worsened his preexisting dry eye condition. Despite Claimant's arguments to the contrary, this Court finds that 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; Wells v State of New York, 228 AD2d 581, 582, lv denied 88 NY2d 814 [the decision whether to and which medicine to prescribe for certain symptoms is a medical determination]).

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 the damage caused by his use of outdated medicine and its impact on his preexisting dry eye condition. Quite simply, in the absence of any testimony from a medical expert that the medicine received by Claimant caused the injuries alleged, the Court has no proof from which it might conclude that accepted standards of care were not met and that the use of said cream harmed Claimant in any respect. In short, Claimant's own unsubstantiated assertions are insufficient to establish a prima facie case of medical malpractice. (Id.). Additionally, Claimant's own medical records fail to reveal any injury resulting from the use of the outdated cream.

For the reasons stated above, Claim No. 99758 is hereby DISMISSED.

Any and all motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.


August 12, 2002
Binghamton, New York

Judge of the Court of Claims