Claimant seeks damages for medical negligence and medical malpractice concerning
the treatment he received while he was incarcerated in the New York State
Claimant contends that, from the time of his incarceration at Downstate
Correctional Facility in 1994, defendant was aware that claimant had a nasal
septum defect. In February 1994, claimant was transferred to Sing Sing
Correctional Facility (Sing Sing). His Ambulatory Health Records reveal that in
1994 a one centimeter hole was noted in his mid septum and he was referred to an
ear, nose and throat consult for evaluation (Ex. 1). The perforation was
attributed to cocaine abuse. The hole enlarged through the years. Claimant was
treated with topical medications and, on March 13, 2000, was admitted to St.
Agnes Hospital in White Plains for a septoplasty. The surgical repair was
unsuccessful and claimant continues to have symptoms relating to the hole in his
septum. According to claimant, the hole has grown because defendant failed to
address his condition in a timely and proper manner. Claimant also contends
that he should be scheduled for further surgery.
Dr. John Petrilli, the Facilities Medical Director at Sing Sing, testified
claimant's nasal defect was not considered a medical necessity and despite the
fact that a septoplasty was performed at St. Agnes Hospital, the Department of
Correctional Services does not have an obligation to perform such procedure and
a further operation is not warranted.
"[A] duty of ordinary care is owed by prison authorities to provide for the
health and care of their charges" (
Gordon v City of New York
, 120 AD2d 562, 563, affd
70 NY2d 839;
Cauley v State of New York
, 224 AD2d 381). The theory of simple
negligence is restricted to those cases where the alleged negligent acts are
readily determinable by the trier of the facts on common knowledge (see
Weiner v Lenox Hill Hosp.
, 88 NY2d 784; Rey v Park View Nursing
, 262 AD2d 624; Coursen v New York Hospital-Cornell Med. Center
114 AD2d 254, 256). However, where, as here, the treatment received by the
patient is an issue, the more specialized theory of medical malpractice must be
followed (see Twitchell v Mackay
, 78 AD2d 125; Hale v State of
, 53 AD2d 1025). To establish a prima facie case of medical
malpractice, a claimant must prove, inter alia
, that defendant departed
from good and accepted medical practice and that such departure was a
substantial factor in producing the alleged injury (see Tonetti v
Peekskill Community Hosp.
, 148 AD2d 525; Mortensen v Memorial Hosp.
105 AD2d 151).
Significantly absent from claimant's case was any competent medical evidence,
either from a treating physician, or from an expert whose opinion was based upon
the available medical records. Without such evidence, claimant's own
unsubstantiated assertions and speculations were insufficient to establish merit
and a prima facie case of either medical negligence or medical malpractice
(see Wells v State of New York
, 228 AD2d 581; Mosberg v
, 176 AD2d 710 affd
80 NY2d 941; Quigley v Jabbur
Defendant's motion to dismiss, upon which decision was reserved, is now
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 106493.