New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2002-019-506, Claim No. 104590, Motion No. M-64029


State's motion for summary judgment on Claimant's medical malpractice claim is denied

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:
January 17, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant State of New York (hereinafter "State") moves for summary judgment pursuant to CPLR 3212. Claimant, an inmate appearing pro se, opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed July 17, 2001.
  2. Notice of Motion No. M-64029, filed September 6, 2001.
  3. Affirmation of Joseph F. Romani, AAG, in support of motion, dated September 4, 2001, with attached exhibits.
  4. Affidavit of John Alves, M.D., in support of motion, sworn to August 15, 2001.
  5. Memorandum of Law, in support of motion, dated September 4, 2001.
  6. "Claimant's Notice of Motion and Affirmation Opposing Defendant's Request for Summary Judgement [sic]", dated September 15, 2001, and received October 4, 2001.
  7. "Affirmation in Support of Claimant's Opposing Motion for Summary Judgement [sic] to Defendant" , of Thomas Williams, dated September 15, 2001, with attached exhibits.
  8. "Sworn Affidavit", of Thomas Williams, sworn to September 12, 2001.
  9. Memorandum of Law in opposition to motion, dated September 2001.
This handwritten Claim, consisting of 118 numbered paragraphs over 21 pages in length, contains by and large a time line of Claimant's numerous requests for sick call between January 2000 through May/June 2000 during his incarceration at Southport Correctional Facility (hereinafter "Southport" or "Facility"), together with the Facility's responses thereto. By way of background, Claimant indicates he was originally incarcerated at Green Haven Correctional Facility (hereinafter "Green Haven") where, among other things, he had been given a "[m]edically prescribed back brace and ankle brace from back and foot specialists". (Claim, ¶ 5). On January 7, 2000, Claimant was transferred to Southport. As best this Court can determine, Claimant is asserting a claim of medical malpractice[1] against the State based upon the following:

1) withholding of a medically prescribed back brace;

2) withholding of a medically prescribed ankle brace;
3) denial of access to a foot doctor (relating to a pre-existing hammer toe condition); and
4) denial of access to an eye doctor (relating to blurred vision).

As a consequence thereof, Claimant alleges to have suffered injuries including loss of sleep, back pain, migraine headaches, depression, foot pain, and blurred vision.

By way of this motion, the State contends that it is entitled to summary judgment as a matter of law based, in large part, upon an affidavit from John Alves, M.D., the Southport physician. Generally, on a motion for summary judgment, the moving party must present evidentiary facts to establish its right to judgment as a matter of law, upon which the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). More specifically, on a summary judgment motion by the defendant in a medical malpractice case, such as here, "[i]t is incumbent on the moving defendant to establish prima facie, usually via an expert affidavit, that he did not engage in any departure from accepted practice or that any departure by him was not a proximate cause of the [claimant's] injuries." (Moore & Gaier, Summary Judgment Motions-Part I, NYLJ, February 2, 1999, at 3, col 3). A defendant's success in meeting this initial burden is measured by determining whether the allegations of the pleadings are adequately refuted which, by definition, is reflective of the level of substantive detail contained in the claim. (Id.). Upon meeting this threshold, the burden shifts to the opposing party to "[s]ubmit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating [claimant] so as to demonstrate the existence of a triable issue of fact [citations omitted]." (Alvarez v Prospect Hosp., 68 NY2d 320, 324-325).

Summary judgment is the procedural equivalent of a trial and should be granted only when it has been established that there is no triable issue. (Andre v Pomeroy, 35 NY2d 361, 364). The role of the Court, therefore, on a motion for summary judgment is not to resolve material issues of fact, but instead is to determine whether any such issues exist. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). If such issues exist, the motion for summary judgment must be denied. Only the existence of a material issue of fact, however, and not one based on conclusory allegations, will be sufficient to defeat a motion for summary judgment. (Rotuba Extruders v Ceppos, 46 NY2d 223, 231).

1. Access to Back and Ankle Braces

The State does not deny that Claimant was denied access to his previously prescribed back and ankle braces for a time while at Southport. Rather, the State argues that there was no medical indication for the use of such braces. More specifically, Dr. Alves states, in pertinent part, as follows:
6. March 17, 2000, Mr. Williams had an examination by myself and the examination of his back and right ankle were normal. I determined there was no medical necessity for a back and ankle brace.
7. On May 5, 2000, Mr. Williams was re-examined by myself. Mr. Williams had been continually complaining of not receiving a back and ankle brace and it was apparent Mr. Williams was preparing legal action concerning his medical care. At this time, although not medially [sic] necessary, Mr. Williams was permitted the use of a back and ankle braces.

8. While it may be true that while confined in other correctional facilities the claimant may have benefited [sic] from the use of a back and ankle brace, this would have been due to a more physical [sic] active environment. However, at Southport Correctional Facility, which is a Special Housing Unit requiring a limited and confined environment for the inmates, there are no physical demands placed upon the inmates such as Mr. Williams.
9. With normal X-Rays and the lack of objective documentation of a serious medical condition there was no medical necessity for Mr. Williams to utilize orthopedic appliances in this limited physical setting.
10. In an effort to appease Mr. Williams I afforded him the opportunity to use a back and ankle brace.

(Affidavit of John Alves, M.D.).

In this Court's view, Dr. Alves' affidavit creates a close question on whether the State has met its initial burden of entitlement to summary judgment. For instance, Dr. Alves' affidavit includes suspect conclusions as to Claimant's state of mind, namely litigious intentions. (Affidavit of John Alves, M.D., ¶ 7). Also, Dr. Alves does not provide many specifics, such as the date of the allegedly normal X-ray or the foundation for his finding of a lack of objective documentation of injury. (Affidavit of John Alves, M.D., ¶ 9). Keep in mind, however, that the State's burden is dictated in part by the Claim itself. Here, despite the length of this Claim, it may fairly be characterized as vague in relation to allegations of the State's departure from accepted practice and the issue of proximate cause. As such, the State's corresponding burden to refute the allegations is not as high as it would have been if the pleadings were more specific. (Alvarez v Prospect Hosp., supra, 68 NY2d, at 325-326). In other words, the State cannot be held to a high standard of refuting specific allegations of medical malpractice when specific allegations of medical malpractice are not contained in the pleadings in the first instance. Consequently, this Court finds that Dr. Alves' averment of a personal examination of Claimant and subsequent determination on March 17, 2000 that there was no medical necessity for these braces are sufficient to meet the State's initial burden of entitlement to summary judgment. Thus, the burden shifts to Claimant to present evidence establishing a question of fact as to whether there was a departure from accepted practice and that any such departure was the proximate cause of the injuries.

Here, Claimant concedes that he has not consulted an expert on this matter, but asserts that it is within common knowledge that someone who was once prescribed an ankle or back brace should have continuing access to the same. (Claimant's Memorandum of Law, p 5). The Court disagrees with this initial assessment and finds that the continued use of a brace is an issue of treatment which is a matter requiring expert proof. In order for Claimant to defeat the State's motion for summary judgment something more is required other than Claimant's conjecture that the State's acts and/or omissions amounted to medical malpractice. As such, it is generally accepted that Claimant should come forward with expert proof of his own demonstrating triable issues of fact relative to his care and treatment. Although Claimant has not submitted any proof from his own expert, Claimant has submitted a Facility Memorandum from Dr. Alves to Claimant dated April 6, 2001, in which he stated the following:
I am in receipt of the above referenced letter. I have reviewed your medical records and determined that you have a medical need for your back brace and ankle brace. You should receive a permit for the same in the near future.

(Exhibit B to Claimant's Affirmation in Opposition; emphasis added).

Dr. Alves attempts to minimize his ultimate acquiescence in providing Claimant his braces as merely an "effort to appease" him. (Affidavit of John Alves, M.D., ¶ 10). However, the Court cannot dismiss the physician's own choice of words in this memorandum that Claimant had a "medical need" for the braces. Although the Court notes that this memorandum is dated approximately ten months after the period of time in question (early 2000), said memorandum also indicates that this conclusion of a "medical need" for the braces was based on a review of medical records only, without any indication of a further physical examination. As such, this Court cannot discount this memorandum as it appears to be based upon the same information Dr. Alves used a year earlier when determining there was no medical necessity for the braces. In sum, Dr. Alves' April 2001 memorandum appears to contradict his own affidavit submitted herewith. Consequently, the Court finds that Claimant has raised triable issues of fact regarding the medical necessity of Claimant's access to his ankle and back braces warranting denial of the State's motion for summary judgment relating to the ankle and back braces.

2. Access to Specialists: Blurred Vision and Hammer Toes

The Claim also alleged that Southport medical officials denied him proper access to eye and foot specialists for pre-existing blurred vision and hammer toe conditions. The State's sole argument in relation to these allegations is Dr. Alves' statement that:
Mr. Williams' complaint of blurred vision and hammer toes have been addressed and treated appropriately. He was issued othopedic [sic] boots and corrective eye glasses.

(Affidavit of John Alves, M.D., ¶ 11).

A physician's own statement that he conducted "appropriate tests" has been deemed conclusory. (Henson v Winthrop Univ. Hosp., 249 AD2d 510). In this Court's view, Dr. Alves' statement that he "addressed and treated appropriately" Claimant's medical concerns is, without more, conclusory in nature and falls far short of the proof necessary to establish the State's prima facie entitlement to judgment as a matter of law. Additionally, the Court notes that Dr. Alves' statement that Claimant "was issued" boots and eyeglasses is ambiguous at best. Does this statement mean that Dr. Alves himself issued these items during the time period in question or is he merely reciting what Claimant himself alleges, namely that at some point prior to arriving at Southport he had been issued these items. Under CPLR 3212, the proponent's "[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted]."[2] (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Consequently, the State's motion for summary judgment on the medical malpractice claim surrounding the treatment of Claimant's blurred vision and hammer toe condition is denied.

Finally to the extent that Claimant's opposing papers request the Court order the production of some of his past medical records due to his inability to pay the cost of such reproduction, the Court declines to do so. (Gittens v State of New York, 175 AD2d 530).

Accordingly, in light of the foregoing, it is ORDERED that the State's motion for summary judgment, Motion No. M-64029, is DENIED.

January 17, 2002
Binghamton, New York
Judge of the Court of Claims

[1]Both parties agree that this Claim is grounded in medical malpractice, rather than simple negligence, in view of the nature of these allegations. The Court agrees.
[2]Claimant submitted a memorandum from Dr. Alves similar to the braces topic. On August 2, 2001, Dr. Alves sent a memorandum to the Facility Block Sergeant in which he states that there "is a medical necessity for [Claimant] to have boots out of personal property." (Exhibit C to Claimant's Affidavit in Opposition). Assuming, arguendo, the Court had found the State met its initial burden on these allegations as well, this memorandum would have created triable issues of fact.