Willie Sykes, the Claimant herein, alleges in Claim Number 101309 that
Defendant's agents failed to provide reasonable and adequate medical care to him
when he was an inmate at Sing Sing Correctional Facility (hereafter Sing Sing).
Trial of the matter was held at Sing Sing on January 25, 2002.
Claimant testified that on or about July 2, 1999, when he had been seen by
medical personnel at Downstate Correctional Facility (hereafter Downstate) prior
to his transfer to Sing Sing, he had been complaining about pain in his heels.
He was told at Downstate that when he got to his next assignment, he should see
a podiatrist. In the meantime, he was given Motrin for the pain.
He arrived at Sing Sing on July 12, 1999. An initial nursing assessment was
made. [Defendant's Exhibit "B"]. Claimant testified that he "complained about
pain in...[his] heels for six months"
, and kept asking to see a podiatrist, but did not see one until the six months
had passed. When he was seen by a podiatrist, he was given "cortisone shots."
These relieved his symptoms somewhat. Three months later, the pain was back. He
then received "more cortisone shots, and Naprosen...[and asserted he] takes
Naprosen to this day for the pain." Claimant said that it was the six month
delay - causing him additional pain and suffering - that "really bothered"
Claimant filed a grievance concerning his attempt to see a podiatrist, which
was heard in September, 1999. [Claimant's Exhibit "2"]. The Central Office
Review Committee for the Inmate Grievance Program indicated that his grievance
was "unanimously accepted in part." [Claimant's Exhibit "1"]. The Committee's
decision, dated November 3, 1999, notes: "...Investigation revealed that
grievant was seen on 7/22/99. P.A.M. recommended that grievant be seen by
Podiatry. It was determined that a consult for podiatry had not been issued as
of 9/2/99. This was immediately corrected.....[G]rievant is scheduled for a
Podiatry consultation in the near future." [
On cross-examination Claimant acknowledged that his Ambulatory Health Record
(hereafter AHR) reflected that he was regularly seen by medical personnel for
his "heel spurs" for the period from July 20, 1999 through March 2, 2000.
[Defendant's Exhibit "B"]. It appears he saw a podiatrist for a consultation
on November 15, 1999 and April 3, 2000. [Defendant's Exhibit "C"] He reiterated
that he suffered additional pain because of the delay in receiving recommended
treatment by a Podiatrist.
It is "fundamental law that the State has a duty to provide reasonable and
adequate medical care to the inmates of its prisons," including proper diagnosis
Rivers v State of New York
, 159 AD2d 788, 789 (3d Dept. 1990), lv
, 76 NY2d 701 (1990).
In a medical malpractice claim, the Claimant has the burden of proof and must
prove (1) a deviation or departure from accepted practice and (2) evidence that
such deviation was the proximate cause of the injury or other damage. A cause
of action is premised in medical malpractice when it is the medical treatment,
or the lack of it, that is in issue. A Claimant must establish that the medical
care giver 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. The "‘claimant must [demonstrate] that the
physician deviated from accepted medical practice and that the alleged deviation
proximately caused his...injuries' (
Parker v State of New York
, 242 AD2d 785, 786...)." Auger v State of
, 263 AD2d 929, 931 (3d Dept. 1999). Without such medical proof, no
viable claim giving rise to liability on the part of the State can be sustained.
Hale v State of New York
, 53 AD2d 1025 (4th Dept. 1976), lv
, 40 NY2d 804 (1976). A medical expert's testimony is necessary to
establish, at a minimum, the standard of care. Spensieri v Lasky
NY2d 231 (1999).
If a claim can be read to allege simple negligence, or medical negligence, then
the alleged negligent omissions or acts by the State's employees can be readily
determined by a fact finder using common knowledge without the necessity of
Coursen v New York Hospital-Cornell Med. Center
, 114 AD2d 254, 256 (1st
Dept. 1986). Similarly, the State may be found liable for ministerial neglect
if its employees fail to comply with an institution's own administrative
procedures and protocols for dispensing medical care to inmates. Kagan v
State of New York
, 221 AD2d 7,10 (2d Dept 1996).
In this case, only the testimony of the Claimant has been presented in support
of any claim of malpractice. No competent medical evidence was presented,
through a treating physician or an expert witness whose opinion was based upon
the available medical records, to support the allegation of medical malpractice.
There is no medical evidence on any medical issue and thus no proof that
accepted standards of care were not met. Accordingly, the claim of medical
malpractice must be dismissed.
With respect to a claim of simple negligence, there is some indication that the
actions of medical care givers amounted to simple negligence or ministerial
Coursen v New York Hospital-Cornell Med. Center
; Kagan v State of New York
AHR shows - as does the resolution of the grievance - that recommendations to
see a podiatrist had been ignored for at least a two month period from July to
September, 1999, and then again until November, 1999. It is not entirely
discernable on this record to what degree Claimant's suffering might have abated
with a quicker visit to a consultant, although Claimant credibly testified that
the cortisone shots ultimately given helped. Nonetheless, the Court is
convinced that some degree of pain might have been avoided by use of such
palliative care. See, e.g.
, Ford v State of New York
, Claim No.
96731 Corbett, J., August 7, 2001. Accordingly, Claimant is awarded $500.00 for
his pain and suffering attributable to Defendant's failure to follow its own
medical personnel's recommendation that Claimant be seen by a
Let Judgment be entered accordingly.