Claimant, Batista Carrelaro, a
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,
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
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his use of this outdated medical cream did not relieve his dry eyes, and instead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outdated eye cream.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
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.
, 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,
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.
53 AD2d 1025).
Here, Claimant alleges the State improperly prescribed outdated eye cream which
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
74 NY2d 673; Duffen v State of New York
, 245 AD2d 653, lv
91 NY2d 810; Wells v State of New York
, 228 AD2d 581, 582,
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
). 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
Any and all motions on which the Court may have previously reserved or which
were not previously determined, are hereby denied.
ENTER JUDGMENT ACCORDINGLY.