New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2002-029-176, Claim No. 92759


Prisoner-Alleged delay in getting claimant to infirmary; Court finds failure of proof. Alleged medical negligence; Court finds failure of proof. Alleged failure to comply with facility directive regarding open-toed shoes; Court finds directive not applicable to claimant.

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:
Elizabeth Thomas, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 29, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This claim by a
pro se prisoner alleges negligence on the part of various State employees, as well as, negligent medical treatment rendered by medical personnel at Bedford Hills Correctional Facility (hereinafter Bedford Hills). Following several adjournments, the trial of this claim was held at Bedford Hills on April 12, 2002.
Claimant testified that on July 30, 1995, at about 6:30 a.m., she slipped and fell while she was working in the Bedford Hills mess hall. She stated she slipped because the floor was wet due to a leak from a pipe.[1]
She stated that she reported the incident to the correction officer (C.O.) on duty and told him that she hurt her right ankle and lower back. In her amended claim and "Opening Statement/Case Summary", Ms. Thomas asserts that the C.O. was negligent in that he waited over 90 minutes from the time she reported her accident to him until he called for an escort to take her to the facility infirmary.
C.O. Irwin testified that he was on duty in the mess hall at Bedford Hills on July 30, 1995 at the time claimant fell. He stated that at about 6:30 that morning claimant reported that she was injured when she slipped in a puddle of water in the recreation room. C.O. Irwin stated that he called the medical department to report that claimant was hurt. He testified that claimant could not go to the infirmary without an escort officer and it took "a while" for the escort officer to come for claimant, presumably since there are fewer officers on duty at that hour of the morning than during the day. He stated that the escort officer did not arrive until sometime after 7:00 a.m.

It is hornbook law that in order to prevail in an action sounding in negligence, the claimant must demonstrate: (1) a duty by the defendant to the plaintiff, (2) a breach of that duty and (3) an injury suffered by the plaintiff which was proximately caused by the breach (
Murray v New York City Hous. Auth., 269 AD2d 288). All elements must be proven by competent evidence and may not be based upon speculation (Markel v Spencer, 5 AD2d 400). The absence of proof concerning any one element must result in a finding of no liability.
With regard to the first cause of action, claimant has failed to substantiate her claim of negligence by C.O. Irwin. The officer testified that he called the infirmary and that because of low staff, an escort officer did not come to take Ms. Thomas to the infirmary for at least a half hour. While the Court can understand that such a delay may seem interminable to a person in pain, claimant has failed to establish that the delay was so unreasonable as to constitute a breach of duty owed to her. Further, even assuming,
arguendo, this delay had constituted a breach of duty, claimant failed to adduce any evidence that the delay in receiving medical care exacerbated the injury she sustained in the fall. This cause of action is dismissed.
Claimant next asserts that she received improper medical care from Nurse Carroll on July 30, 1995. Claimant alleges the nurse failed to follow appropriate protocol in that Nurse Carroll failed to notify the on-call doctor of claimant's condition. Claimant testified that Nurse Carroll examined her lower back and right ankle; that she wrapped the ankle in an ace bandage and told claimant to keep the leg elevated, put ice on it and take Advil for pain (see July 30, 1995 Progress Notes, Exhibit 1) but never notified a doctor to make a determination as to the course of treatment to be followed.

Nurse Carroll testified that she put claimant's name on the emergency list to be seen by a doctor on July 31, 1995 (see July 31, 1995 Progress Notes
, Exhibit 1). She further stated that she examined claimant's right ankle and there were no signs of a dislocation or fracture. She stated that she put an ace bandage on claimant's right ankle and told claimant to keep the foot elevated. It was the witness' recollection that claimant was able to put her right shoe on after the ankle was wrapped and that claimant was ambulatory when she left the infirmary. Nurse Carroll testified that claimant was not put on a "bed rest" restriction.
Claimant asserts that the protocol for a medical emergency dictates that a doctor should have been notified. She asserts that Nurse Carroll negligently performed her ministerial duties in failing to follow the protocol. The violation of protocols governing the provision of medical care to prisoners may constitute ministerial neglect and support a finding of liability for the negligence rendition of medical services (
Kagan v State of New York, 221 AD2d 7). Of course, any such finding of liability must also necessarily contain the elements of causation and resultant damage (Murray v New York City Hous. Auth., supra, see also, Butler v New York State Olympic Regional Development Authority, CTCL, Collins, J., UID#2001-015-533 []).
Nurse Carroll testified that the protocol claimant referred to applied only to emergency situations. She further stated that a swollen ankle was not, per se, an emergency absent evidence of a fracture or dislocation and no symptoms of either were presented to her at the time she initially treated claimant.

The evidence adduced at trial[2]
does not establish that claimant's condition was a medical emergency dictating that a doctor be informed of her condition immediately. Thus, no duty arose on the part of Nurse Carroll to immediately summon a doctor. Conversely, even assuming that the nurse did not follow the protocol and there was a breach of duty, claimant would still be required to prove, by a preponderance of the evidence, that the breach was a substantial factor in causing or exacerbating the claimant's injuries (Natale v Niagara Mohawk Power Corp., 135 AD2d 955). In this matter, claimant did not establish that the treatment plan was deficient or that the injury was exacerbated by the failure to be examined by a doctor on July 30, 1995. Therefore, this cause of action is dismissed.
Claimant next asserts that the State was negligent in requiring her to return to work after she was seen by Nurse Carroll on July 30, 1995. The evidence adduced at trial established that after claimant returned to her housing unit from the infirmary, C.O. Irwin called claimant's housing unit officer (C.O. Blue) and C.O. Blue informed him that claimant had a "light duty" medical restriction, which is a non-bed rest medical restriction. It was C.O. Irwin's uncontroverted testimony that standard operating procedure within the facility required that an inmate not on a bed rest restriction report to her work assignment. The evidence established that C.O. Irwin requested that claimant return to work and assigned her the job of rolling silverware.[3]
He advised her that she could perform this job in the recreation room while seated with her foot elevated. Claimant testified that she was unable to put a boot or shoe on her right foot because of the swelling and ace bandage. She testified that the only shoe she could get on her right foot was a shower shoe and that a Sargeant directed her to wear her shower shoes and return to work. Claimant asserts that this direction was in violation of facility Standard Operating Procedure A-FDS-4 which prohibits mess hall workers from wearing open-toed shoes to work in food service areas.[4] Claimant testified that, as directed, she was sitting at a table rolling silverware with her foot up on a chair when another inmate accidently banged into her foot causing her further pain.
C.O. Irwin confirmed that open-toed shoes are prohibited for mess hall workers. At her deposition, C.O. Blue[5]
testified that claimant was ordered to go to work in shower shoes.
The evidence establishes that, while Ms. Thomas was directed to return to work wearing shower shoes, C.O. Irwin had her "rolling silverware" in the recreation room (which was not part of the mess hall). The regulation requires workers
in food service areas to wear covered shoes and it is uncontroverted that claimant was outside this area when her foot was accidently struck by a fellow inmate. In fact, Standard Operating Procedure A-FDS-4 specifically excludes recreation areas from the closed shoe requirements. The Court finds that there was no violation of DOCS rules as a result of the order given to claimant to return to "light duty" work in her assigned area. The assignment to such light duty, which allowed her to remain seated with her leg elevated, does not strike the Court as so unreasonable as to warrant liability. Further, there was no proof presented at trial that the injury to claimant's right ankle was exacerbated when her foot was accidentally jostled or that the pain was worse than she would have felt had she been wearing a regular shoe on her right foot. Therefore, the Court finds claimant has failed to meet her burden of proof on this cause of action and it is hereby dismissed. While it could be argued that the State placed claimant in a position where she was exposed to the accidental bumping described, there is no evidence that the risk of such accidental behavior was any greater than elsewhere in the facility, nor would this record allow the Court to place a value upon the short term, transitory pain claimant may have felt when the bump occurred.
Claimant also asserts that she received inadequate medical care for her back ailment. Claimant testified that, following months of complaints to the facility medical staff, she was sent to St. Agnes Hospital for an appointment with Dr. Galleno, an orthopedist. Dr. Galleno prescribed a course of physical therapy for claimant as a possible cure for her herniated disc. Claimant asserts that she did not receive this prescribed treatment of physical therapy and her back problem worsened as a result
Dr. Barbara Griffith, a medical doctor who was the Bedford Hills medical director in 1995
, testified pursuant to a subpoena issued by claimant. The witness stated that she referred claimant to an orthopedic surgeon because claimant was complaining of low back pain; that claimant was examined by Dr. Galleno and he recommended a course of physical therapy and a laminectomy. The witness stated that, to the extent possible in a correctional facility, the recommendations of "outside" doctors are followed. The doctor opined that claimant received reasonable and adequate medical care at Bedford Hills and that the outside consultants' recommendations for physical therapy were followed. Dr. Griffith stated it was her recollection that claimant refused to have the laminectomy performed. Claimant asserted she did not refuse the surgery but requested a second opinion prior to agreeing to have the surgery. Claimant did see a neurologist in February 1996 who suggested physical therapy rather than surgery (see Exhibit 2). It appears from the evidence that claimant agreed and that the laminectomy was, therefore, never performed.
The Court has reviewed claimant's extensive medical record (Exhibits 1 and 2) and finds that claimant was seen by Dr. Galleno on November 1, 1995 and again on December 20, 1995 (see Request and Report for Consultation dated November 1 and December 20, 1995, part of Exhibit 2). On both occasions it was recommended that claimant receive physical therapy. Claimant's medical records also establish that she went to physical therapy on November 30, 1995 and December 14, 1995 (see Request and Report of Consultation dates respectively November 20, 1995 and December 14, 1995, part of Exhibit 1). Claimant also had a neurology consultation in February, 1996 and the neurologist suggested physical therapy rather than surgery (see Request and Report of Consultation dated February 2, 2996, part of Exhibit 2). Claimant's medical records establish that claimant had physical therapy sessions on June 24, 1996 and July 17, 1996 (see Progress Notes for June 24, 1996 and July 17, 1996, part of Exhibit 1).

To maintain an action for injuries sustained while under the care and control of a medical practitioner, a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice
(Hale v State of New York, 53AD2d 1025, lv denied 40 NY2d 804). The theory of simple negligence is restricted to those cases where the alleged negligent act is readily determinable by the trier of the facts based on common knowledge. However, where the propriety of the treatment received by the patient is at issue, the more rigorous analysis of medical malpractice is implicated (see, Twitchell v MacKay, 78 AD2d 125; Hale v State of New York, supra).
In this matter the issue of whether, and to what extent, the alleged failure to provide claimant with surgery or physical therapy contributed to her condition is not a matter of common knowledge which this Court can decide in the absence of expert testimony (
Duffen v State of New York, 245 AD2d 653, lv denied 91 NY2d 810; Armstrong v State of New York, 214 AD2d 812, lv denied 86 NY2d 702). Thus, the burden rests on claimant to establish by expert testimony that the alleged negligence deviated from accepted medical practice and was a proximate cause of her damages, i.e., that it was a substantial factor in causing or exacerbating her injuries (Kennedy v Peninsula Hosp. Center, 135 AD2d 788; Koster v Greenberg, 120 AD2d 644).
While claimant alleges that the failure to provide her with physical therapy as recommended by Dr. Galleno caused further injury to her back, she has failed to offer any expert testimony or submit any documentary evidence that the failure to receive physical therapy was a substantial factor in causing or exacerbating her back problems. In fact, claimant's extensive medical record establishes that claimant did indeed receive physical therapy on at least four occasions (see Exhibit 1) and, according to her own testimony, claimant was scheduled for several others which were canceled because she was "not mentally" prepared for physical therapy on those occasions
due to a death in her family. Based upon the foregoing, the Court finds that claimant has failed to establish any negligence on the part of the State in treating her back condition and this branch of the claim is dismissed.
Prior to closing, the Court notes that I signed a judicial subpoena submitted by claimant directing Dr. Galleno to appear at trial and testify as a fact witness only (see,
Thomas v State of New York, Claim No. 92759, Motion No. M-63289, filed May 10, 2001, Mignano, J.). At trial, Dr. Galleno did not appear and claimant asserts that she received the green return receipt indicating the subpoena was served. The Court proceeded with trial without Dr. Galleno's testimony since he would have testified only to the course of treatment he recommended. This information is available from claimant's medical record (Exhibits 1 and 2). Thus, his failure to appear did not unduly prejudice claimant, especially since as noted, expert testimony would be required for claimant to prove her case and no such testimony was forthcoming.[6]
As set forth above, the Court finds that claimant has failed to establish by a preponderance of the credible evidence any negligence on the part of the State as asserted in her claim. The claim is therefore dismissed. The Chief Clerk is directed to enter judgment accordingly.

May 29, 2002
White Plains, New York

Judge of the Court of Claims

[1] No claim was made or evidence submitted at trial attempting to establish that the State was negligent in maintaining the floor or pipe or in any way causing claimant to fall.
[2] At trial, the only documents received into evidence as claimant's exhibits 1 and 2 are claimant's voluminous medical records.
[3] This consisted of claimant rolling a fork and spoon into a napkin for the inmates to use for their meals.
[4] Pursuant to CPLR 4511 (b), the Court takes judicial notice of this DOCS regulation which Ms. Thomas referred to at trial as Directive 4310.
[5] Claimant served a subpoena to compel C.O. Blue to appear at trial. However, C.O. Blue was scheduled to be on vacation out of the country on the date of trial, so the Court ordered that C.O. Blue's testimony be taken by video taped deposition (see Court Exhibit 1).
[6] The Court also granted claimant a 30 day period, post-trial, to submit argument and material showing cause why Dr. Galleno's absence would be materially prejudicial to her case. Claimant apparently declined this invitation.