New York State Court of Claims

New York State Court of Claims

MOON v. COUNTY OF ERIE, ERIE COUNTY MEDICAL CENTER, CORYDON W. SIFFRING, M.D., VIVIAN R. MONSANTO, M.D., KURT VONFRICKER, M.D., and DR. FLYNN. , #2002-031-038, Claim No. 94792, Motion No. M-64706


Synopsis


Court of Claims has no jurisdiction over County and individual Defendants who allegedly committed malpractice. Defendant's motion for dismissal of the claim is granted

Case Information

UID:
2002-031-038
Claimant(s):
GEORGE MOON
Claimant short name:
MOON
Footnote (claimant name) :

Defendant(s):
COUNTY OF ERIE, ERIE COUNTY MEDICAL CENTER, CORYDON W. SIFFRING, M.D., VIVIAN R. MONSANTO, M.D., KURT VONFRICKER, M.D., and DR. FLYNN.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94792
Motion number(s):
M-64706
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
RONALD R. BENJAMIN, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 5, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 3, were read on motion by Defendant to dismiss the claim:
  1. Defendant's Notice of Motion, filed February 11, 2002;
  2. Affidavit of Gregory P. Miller, Esq., sworn to February 8, 2002, with attached exhibit;
  3. May 28, 2002, correspondence from Ronald R. Benjamin.
This is Defendant's motion seeking dismissal of the claim for failure to state a cause of action against the State of New York. In his underlying claim, George Moon alleges medical malpractice against the County of Erie, the Erie County Medical Center ("ECMC") and several individual doctors employed at ECMC relating to two surgeries he endured to correct a hiatal hernia. Specifically, Claimant alleges that his first surgery, which occurred at ECMC on June 21, 1994, was so negligently performed that the doctors operated on the wrong spot, missed and therefore failed to correct the hernia. By reason of this botched operation, Claimant was forced to endure several additional months of pain and undergo a second surgery in February of 1995.

For purposes of this motion, counsel for the State does not dispute that Claimant was the victim of malpractice but asserts that, even if he was, the malpractice was not the result of any improper action or inaction by an employee or agent of the State. In fact, the State is not even named as a Defendant in the Claim which was filed on September 25, 1996. Therefore, Defendant asserts that the Court of Claims does not have jurisdiction over this matter.

Claimant's counsel, who had not been retained at the time that the claim was filed, argues that, even though Claimant failed to list the State of New York as a named Defendant in the caption, that an action against the State has been adequately set forth in the body of the claim. Claimant also asserts that the failure to detect the fact that the State was not a named Defendant was due in part to the inadvertent identification of the State as a named party in correspondence between counsel and a previous scheduling order made by my predecessor and filed October 21, 1999.

The fact that, several years after the claim was filed, these documents mistakenly identified the State as a party does not now make the State a proper party. It should be noted that Claimant's counsel made this same mistake when it filed its initial notice of appearance. Additionally, all of the pleadings in this matter contain the correct caption. This action was brought in the Court of Claims against Erie County, ECMC, and several individual doctors employed at ECMC. The State was not named in the claim as a defendant, and more importantly, nothing contained in the claim sets forth actionable conduct by a State employee or agent. The only action taken by an agent of the State was the referral of Claimant to ECMC by the State doctor who saw him at Groveland Correctional Facility. The Claimant has not alleged any negligence on this doctor's part and the mere referral of Claimant to ECMC does not expose the State to liability for subsequent malpractice of the doctors to whom Claimant was referred (see, Impastato v DeGirolamo, 117 Misc 2d 786).

The Court of Claims is a court of limited jurisdiction with power to hear claims only against the State and certain public authorities (Court of Claims Act § 9). Erie County, ECMC, and the individual doctors identified in the claim are not employees or agents of the State. It has been established that when a prison inmate is referred to an outside physician who, acting as an independent contractor, provides treatment only at outside facilities not owned and operated by the State, any malpractice that occurs in connection with such treatment does not give rise to a claim against the State (Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701; Williams v State of New York, 164 Misc 2d 783; compare, Soltis v State of New York, 172 AD2d 919 [private practitioner examined and treated inmates inside the correctional facility]). Consequently, with respect to the allegations of malpractice involving each individual and entity identified by Claimant, he has failed to state a cause of action against the State upon which relief may be granted.

Based on the foregoing, it is;

ORDERED, Defendant's motion to dismiss the claim is granted. The Chief Clerk is directed to close the file.

September 5, 2002
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims