New York State Court of Claims

New York State Court of Claims

STEVENSON v. THE STATE OF NEW YORK , #2002-030-089, Claim No. 104709


Pro se inmate's claim alleging Defendant's agents failed to provide adequate and timely medical care sustained as to simple negligence or ministerial neglect. Defendant failed to follow its own medical personnel's recommendation, causing some degree of pain and suffering. Damages in the amount of $200.00

Case Information

ANTHONY STEVENSON Caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
December 20, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Anthony Stevenson, the Claimant herein, alleges in Claim Number 104709 Defendant's agents failed to provide adequate and timely medical care when he was incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was held at Sing Sing on October 18, 2002.

Claimant testified that on the morning of Saturday, April 21, 2001, while competing in the last "swatting event"[1]
in a Statewide power lifting meet, he injured his left knee and lower left leg. The swat event involved "getting control" of a 600 pound weight in two different positions: first "going up under the weight" and "swatting it down to a certain depth", and then in an upright position with the weight on your shoulders. Upon achieving control of the weight in both positions, the judges then instruct the competitor to "rack the weight". It was during the first position of this event - as he was attempting to "swat the weight" - that Claimant heard a loud pop in his left thigh, and felt pain at the same location, and "went down."
Although on direct examination it at first appeared that Claimant immediately went to obtain emergency care at the facility's medical unit, on cross-examination it was revealed that Claimant continued to compete in the meet until 3:00 p.m. or so for the next two remaining events: the bench presses and the "dead lift." He asserted that the weights he was lifting for these events "were not in direct connection with my leg,... [that they] could be lifted using only one leg,... [and that he] was competing in pain." Claimant testified that when he went to the emergency room he was seen by the nurse and placed on "medical keeplock" until Tuesday, April 24, 2001 when he could be seen by either one of the physicians or the physician's assistants, for a complete examination.

The Claimant's Ambulatory Health Record [hereafter AHR] confirms that he saw medical personnel on April 21, 2001 at 5:15 pm, concerning the pain he had been experiencing from "between 9 AM and 11 AM" because of the weight lifting event [
See, Defendant's Exhibit "A"]. He was given pain medication, and his knee was immobilized, iced, and elevated. Crutches were issued. The nurse writes he was "[a]ble to bear...[weight with] limping [gait]." [Id]. The AHR notes reflect that he saw personnel again on April 23, 2001, his left knee was again "immobilized", and he was referred to Physician's Assistant [PA] Williams for an appointment on Tuesday, April 24, 2001.
PA Phillip L. Williams testified concerning his treatment of Claimant. He stated that he first saw Claimant for the injuries complained of on April 21
st on April 24, 2001. He examined Claimant, noting that the left knee had full passive and active range of motion, that Claimant was ambulating with crutches, and experiencing anterior thigh pain. The x-ray taken was negative for fractures, dislocations and any avulsions, and was taken "to rule out any bony abnormality such as fracture or a chip fracture." An x-ray, he testified, would also show muscles connecting to the left knee, including the left thigh and quadriceps. He stated that his notes indicated that there was no damage to the quadriceps. At the time, he did not suggest either physical therapy or an MRI, because he felt it was not indicated by what appeared to be a quadriceps strain, nor do his notes reflect that Claimant asked for either physical therapy or an MRI. The treatment indicated by what appeared to be the presenting condition of a strained quadriceps - described as a "self limiting injury" - would be rest, and medication. Such conservative treatment usually will resolve the injury. PA Williams did, however, discontinue medical keeplock, discontinued crutches and provided a cane as Claimant had requested, prescribed Naprosen - an anti-inflammatory agent to reduce inflammation and pain - and continued with a knee immobilizer. A follow up appointment for May 8, 2001 was made.
In the interim, the medical records reveal Claimant again saw medical personnel on May 5, 2001 complaining of chest pains. [
See, Defendant's Exhibit "A"]. On May 8, 2001, the AHR indicates Claimant kept his appointment with PA Williams, who noted, as did Nurse Johnson on the same date, that Claimant wanted to return to work. PA Williams notes in the "subjective portion" of the AHR for the day: "much better, a little sore, but ok if wants to return to work...." Under the Assessment portion of the AHR, he noted "resolved quad strain." [Id]. PA Williams testified that at the time of his examinations of the Claimant, neither physical therapy or further investigation of the problem with an MRI was warranted as the injury appeared to be resolving with conservative treatment.
According to the AHR, on May 17, 2001 he was seen by medical personnel when he complained of pain in his knee, and was prescribed more pain medication, and appeared for sick call on June 4, 2001 complaining of symptoms of an ear infection, as well as knee pain, and then on June 18, 2001, at which time he was referred for re-evaluation by a physician assistant. [Defendant's Exhibit "A"].

On June 29, 2001, he was seen by Dr. Mikulas Halko, who also testified as to his treatment of Claimant. After taking his history, Dr. Halko examined Claimant on that date - including the left knee and left leg in general - and concluded that there was a left knee injury with "possible internal derangement with history of old trauma probably re-injured with lifting activity." The doctor requested an update on "labs", asked for an "arthritis profile" that would give information concerning the medical condition of the left knee, and requested a physical therapy evaluation. He testified that physical therapy was ordered at that time because it seemed that the injury from April 21, 2001 was still giving Claimant pain on June 29, 2001, thus indicating that further assistance was needed since what appeared to be a "reasonable complaint" from Claimant persisted. He thought physical therapy now made sense because "if that didn't work, then you would find out quickly if there was no improvement, and then maybe a referral to the orthopedic unit or for an MRI" would be warranted.

After seeing Dr. Halko on June 29, 2001, Claimant was seen by medical personnel on July 2, 3, 9,11,16, and 30
th, 2001, complaining of some unrelated ailments as well as left knee pain in at least one instance. [Defendant's Exhibit "A"].
On August 1, 2001 Claimant saw the physical therapist at "Fishkill Hospital". The notes made by Dr. Halko referring Claimant for consultation indicate that at the time of the injury to his left quadriceps and left knee during the weight lifting session, an x-ray of the left knee was "normal." [Claimant's Exhibit "1", Partial AHR; Defendant's Exhibit "A"]. The notes also indicate that claimant had surgery on his left knee at the age of 8.
[Id]. The physical therapist's findings were that Claimant's status was consistent with a soft tissue strain in a chronic stage, and recommended physical therapy two times per week for a period of six weeks. Claimant was next seen by medical personnel on August 15, 17, 27, and 29th, and September 4th and 11th, 2001. [Id].
On September 18, 2001 the physical therapist found Claimant's status "unchanged," and "recommended" continuation of physical therapy. [Claimant's Exhibit "2", Partial AHR; Defendant's Exhibit "A"]. This appears to have been one of the two times Claimant did receive physical therapy during the period pertinent to his claim. Thereafter, Claimant was transferred to Five Points Correctional Facility on October 4, 2001, where he asserts he received appropriate care.

Dr. Halko maintained that treatment is a step-by-step process. He said that at the time, the injury was mostly evidenced by the patient's complaints, and that the objective symptomology was "ubiquitous": it could be from the old injury he found evidence of when listening to Claimant's knee, or the recent strains from the weight lifting activity. He testified that based upon the medical literature he consulted, from four to six weeks prescription of non-steroid, anti-arthritic medication would be standard, as would rest, support, an instruction to refrain from lifting, and maybe some exercise.

In his pursuit of what he viewed as proper medical treatment, Claimant filed a grievance with the Inmate Grievance Resolution Committee [hereafter IGRC] on May 31, 2001, and then again on August 27, 2001. [Claimant's Exhibit "3"].With respect to the first grievance, in a determination dated June 13, 2001 the Superintendent stated that "medical records indicate that grievant has been seen by medical a number of times including 5/17/01. Grievant is advised to follow-up at sick-call if pain persists."
[Id]. The Central Office Review Committee determination, dated July 25, 2001, indicates that "...grievant saw the orthopedist on 7/10/01 and is scheduled for physical therapy in the future. The diagnosis made by the orthopedist was bilateral tendonitis, which is not a major injury." [Id]. These comments concerning the tendonitis appear to relate to another injury Claimant was being treated for with an orthopedic consultation, reflected in the AHR consultation reports. [Defendant's Exhibit "A"].
The IGRC determination of the grievance he filed August 27, 2001, based upon a hearing held September 5, 2001, and after his initial consultation with the physical therapist, states: "Committee recommends that the Grievant be brought to physical therapy as soon as possible. Committee notes that the grievant's new mediation appears to be working, and advises the grievant to continue to use in according
(sic) to directions." [Claimant's Exhibit "3"].
On cross-examination, Claimant maintained he had always been a "cautious lifter", in the best of health, and had competed in weight lifting meets prior to 1999, his first year of incarceration. April 21, 2001 had been the first meet he had taken part in. As noted earlier, he admitted that he continued to participate in the weight lifting event after the quadriceps injury, but maintained that that lifting had no impact on the initial injury. He testified that he continued to lift weights after April 21, 2001, but claimed that he was "cleared by the doctors to lift weights - including PA Williams and Dr. Halko," who told him he could "lift on a light level." The Court notes nothing appears in the medical record concerning clearance for lifting weights. Claimant testified he has not competed in any other meets since.

No other witnesses testified and no other evidence was submitted.

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 and treatment.
Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied, 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 New York, 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 denied, 40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 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 expert testimony.
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. Indeed, the facility physician treating Claimant, Dr. Halko, indicated that the treatment he rendered was appropriate. Accordingly, the claim of medical malpractice must be dismissed.

With respect to a claim of simple negligence, however, there is some indication that the actions of medical care givers amounted to simple negligence or ministerial neglect.
Coursen v New York Hospital-Cornell Med. Center, supra; Kagan v State of New York, supra. The AHR shows - as does the resolution of the grievance - that recommendations to see a physical therapist had been ignored for at least a month from the time Dr. Halko initially suggested it, and then again after the physical therapy evaluation. It is not entirely discernable on this record to what degree Claimant's suffering might have abated with a quicker visit to a consultant. The Claimant presented as a largely credible witness, who, despite apparently continuing in the competition, and engaging in "light lifting" since, offered a reasonable explanation as to how such activity would not impact upon the injury he complains of, and the lack of care for same. Accordingly, the Court is convinced that some degree of pain might have been avoided by use of the recommended care and treatment. See, e.g., Ford v State of New York, Claim No. 96731 (Corbett, J, Filed August 7, 2001.). Claimant is awarded $200.00 for his pain and suffering attributable to Defendant's failure to follow its own medical personnel's recommendation that Claimant be seen by a physical therapist.
It is ordered that to the extent Claimant has paid a filing fee, it may be recoverable pursuant to Court of Claims Act § 11-a(2).

Let Judgment be entered accordingly.

December 20, 2002
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.