WILLIAMS v. THE STATE OF NEW YORK, #2002-019-506, Claim No. 104590, Motion No.
State's motion for summary judgment on Claimant's medical malpractice claim is
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
THOMAS WILLIAMS, PRO SE
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney General, of counsel
January 17, 2002
See also (multicaptioned
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
Claim, filed July 17, 2001.
Notice of Motion No. M-64029, filed September 6, 2001.
Affirmation of Joseph F. Romani, AAG, in support of motion, dated September 4,
2001, with attached exhibits.
Affidavit of John Alves, M.D., in support of motion, sworn to August 15,
Memorandum of Law, in support of motion, dated September 4, 2001.
"Claimant's Notice of Motion and Affirmation Opposing Defendant's Request for
Summary Judgement [sic]", dated September 15, 2001, and received October
"Affirmation in Support of Claimant's Opposing Motion for Summary Judgement
[sic] to Defendant" , of Thomas Williams, dated September 15, 2001, with
"Sworn Affidavit", of Thomas Williams, sworn to September 12, 2001.
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
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
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
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,
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]."
(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
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.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court of
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.
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.