New York State Court of Claims

New York State Court of Claims

MC CRAY v. THE STATE OF NEW YORK, #2003-010-012, Claim No. 91862


Inmate slip and fall on wet stairs dismissed for lack of credible evidence.

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):

Terry Jane Ruderman
Claimant's attorney:
NISHMAN AND SAVITSKYBy: Robert Savitsky, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Judith C. McCarthy, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 15, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries he sustained during his incarceration at Sing Sing Correctional Facility (Sing Sing) when, on February 28, 1995, he slipped and fell when descending stairs to recreation. Claimant contends that the steps were wet and that defendant was negligent in its maintenance of the stairs and in failing to post barricades or wet floor signs. Claimant further contends that defendant committed medical malpractice in failing to diagnose and treat claimant for tarsal tunnel syndrome. Defendant maintains that it had no notice of the allegedly wet steps and that claimant sustained an ankle sprain that was properly treated. This claim was heard in a unified trial.
Claimant's Slip and Fall
Claimant testified that on February 28, 1995 he was housed in B block. At approximately 6:00 p.m., claimant left his cell on the third tier of B block and proceeded down the south end staircase to the evening recreation. Claimant was wearing sneakers and holding the right handrail as he descended the staircase. Claimant slipped and fell backward on the second tier and slid down the stairs to the ground level. Claimant testified that, after he fell, he noticed that the back of his shirt was wet and this led him to conclude that the cause of his fall was a wet step (T:21-24, 29).[1] Claimant testified that, prior to his fall, he did not see any water on the steps (T:184-85). There were no warning signs or barricades alerting that the floor was wet. Claimant testified that he used the stairs almost every night to go to recreation and he never saw the steps wet (T:184-85). William Johnson, who was also incarcerated in B block in 1995, testified that he was three steps behind claimant on the stairs and saw him fall in a forward motion and land at the bottom of the steps (T:204-05). Johnson testified that he observed "little puddles of water on each step" between the fifth and eighth step from the top of the staircase (T:206). Johnson concluded that the water caused claimant's fall. Johnson also noticed that the back of claimant's shirt was wet after his fall (T:207).
Johnson testified that, in the four months prior to February 28, 1995, he had observed water on the stairs 30 to 40 times. Johnson maintained that, from his cell, he could see inmate porters entering the stairs with water between 5:00 and 5:30 p.m., three times a week. He could not see what they did in the stairwell. He also testified that,
approximately 40 times, he had observed porters, after 6:00 p.m., mopping the stairs after they were used by the inmates. At no time did Johnson ever observe any barricades or wet floor signs. Johnson stated that, while the hundreds of inmates were using the staircase en route to recreation, porters were not in the stairway.
Correction Officer Michael Barnes testified that, on February 28, 1995, he was responsible for opening the gates for the evening recreation and monitoring the inmate traffic. During a 30 minute period, 600 inmates were released at intervals from B block and utilized the stairs to proceed to the yard (T:248-49). Inmates were permitted to carry food and drink with them in the stairwells (T:275). Barnes never observed porters in the stairways while the inmates were there. Barnes observed
claimant on the bottom of the south end stairwell, blocking the stairs (T:250). Barnes was not aware of anyone else falling in that area during recreation (T:256). Barnes studied the area and did not recall anything out of the ordinary (T:275). Had Barnes observed a dangerous condition, such as water on the steps, he would have stopped the inmates from proceeding to recreation and he would have called a porter to clean up the water (T:285-86).
Barnes testified that, during the five years prior to
claimant's accident that Barnes has been an escort officer in that area, he noticed water in that stairwell on more than 5, but less than 10, occasions (T:276-78). Barnes explained that water was mainly on the top landing connected to the gallery due to toilet overflow or from a leaking ceiling after a heavy rain (T:276-80). Barnes further testified that, after all the inmates had moved out of the area and recreation had been completed, the porters then mopped the stairwell (T:259, 261-69). The porters were not in the stairwells during recreation (T:262). The porters did not post any signs while mopping (T:269). Claimant was transported to the emergency room on a stretcher and the movement of inmates continued on schedule.
It is well established that "[t]he State - just as any other party *** is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived" (
Flaherty v State of New York, 296 NY 342, 346) and with respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506, 513; Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241).
The State, however, is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (
see Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874). In order to prevail on his claim, claimant must show: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955).
Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence failed to establish claimant's burden of proof (
see Stefan v Monkey Bar, 273 AD2d 133 [complaint was properly dismissed where there were no complaints of wetness and floor was cleaned as necessary]; Seneglia v FPL Foods, 273 AD2d 221 [no evidence that defendant created or had either actual or constructive notice of wet floor upon which plaintiff fell]). Merely because inmates were permitted to carry drinks in the stairwell does not obviate claimant from the burden of establishing that defendant had actual or constructive notice of the particular condition which caused claimant's fall (Gloria v MGM Emerald Enters., 298 AD2d 355, 356 [defendant's general awareness that bar patrons may spill drinks on the dance floor does not obviate plaintiff's obligation to establish that defendant had actual or constructive notice of particular condition which caused the fall]). "Because a ‘general awareness' that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiff's fall *** liability could be predicated only on failure of defendants to remedy the danger presented by the liquid after actual or constructive notice of the condition" (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [citations omitted]).
The Court does not find Johnson to be a credible witness, particularly
as to his observations of puddles of water on each step. Barnes, to the contrary, was most credible and forthright in his testimony that, had he observed a dangerous condition, such as water on the steps, he would have stopped the inmates from proceeding and would have called a porter to clean up the water. Barnes did not recall any dangerous condition, nor was he aware of any other falls in that area prior to claimant's fall (T:256). Thus, there is no basis, on the evidence presented, for finding that the floor had been wet for an appreciable length of time so as to permit defendant to rectify the condition (see Puryear v New York City Hous. Auth., 255 AD2d 138, 139 [plaintiff failed to establish that particular puddle existed for sufficient time to enable defendant to rectify]). Nor was there sufficient evidence to establish a recurrent condition of which defendant was or should have been aware (see Kershner v Pathmark Stores, 280 AD2d 583 [proof that defendant was aware that floor became wet during rainy weather was not sufficient to establish constructive notice of particular condition that caused plaintiff's fall]; Goberdhan v Waldbaum's Supermarket, 295 AD2d 564 [in the absence of proof as to how long the puddle of water was on the floor, there is no evidence which would permit an inference that defendants had constructive notice of the condition]). Barnes testified that, during the five years prior to claimant's accident that Barnes was assigned to that area, he did not observe any inmates falling on the steps (T:256). Claimant was bound to see that which was there to be seen (see Johnston v State of New York, 127 AD2d 980, 981) and claimant testified that he did not see any water on the steps prior to his fall. Claimant further testified that he used the steps nearly every night and never saw them wet. In sum, claimant has failed to establish that defendant was negligent in its maintenance of the area.
Claimant's Medical Treatment
Claimant testified that Correction Officer Michael Barnes responded to the scene and claimant was transported to the Sing Sing emergency room on a stretcher. Claimant reported to the emergency personnel that the cause of his injury was a wet step and that he had pain in his right ankle. An Ace bandage was applied. Claimant was issued a cane, given Tylenol and directed to return the next day. An x-ray was taken on March 1, 1995 indicating ankle mortise within normal limits and no fracture (T:31-32). Claimant testified that during the three months after the accident, he made 20 to 25 visits to sick call complaining of throbbing pain and pins and needles. Claimant acknowledged on cross-examination that his Department of Correctional Services medical records do not indicate any notations that he ever complained of pins and needles. (T:195). Claimant was treated with aspirin and Motrin. On May 6, 1995, claimant filed a grievance stating that he was still in pain, his ankle and foot were swollen and he had not seen a doctor. The grievance did not mention that claimant was experiencing pins and needles (Ex. 6). Thereafter, claimant was examined by either Doctor Halpern or Moore. While claimant could not recall which doctor had examined him, claimant was certain that he had told the doctor about the sensation of pins and needles. The doctor referred claimant to a podiatrist.
In June, claimant saw Dr. Shapiro, a podiatrist (T:43). Over the next several visits, Shapiro administered three or four injections to claimant's ankle (T:45). Pointing to his shoes at trial, claimant indicated that the injections were given in the area near the lower part of his shoelace (T:46). According to claimant, the injections provided temporary relief, but the pain resumed within two to three days (T:50).
An MRI was taken on May 14, 1995, which showed:
"Medial collateral ligament swelling and thickening, compatible with a partial tear. No complete disruption. No evidence of posterior tibialis or peroneal tendon tenosynovitis. No evidence of fracture or diastasis"
(Ex. 3). On November 6, 1995, Shapiro referred claimant to Doctor Holder, an orthopedic specialist at St. Agnes Hospital. The orthopedist recommended arthroscopic surgery on claimant's ankle, which was performed on January 12, 1996. The medical records from St. Agnes indicate that claimant complained of pins and needles (Ex. A, p. 7). When claimant was discharged from the hospital, he refused crutches (Ex. B, p. 123).
Claimant maintains that, following surgery, he continued to experience pain and pins and needles. He was given Motrin or Tylenol. Claimant testified that he did not play any sports until 10 months after the accident (T:66). However, he admitted that on May 11, 1995, barely three months after the accident, he sought medical treatment for a sports injury (T:199-200; Ex. A, p. 55). Claimant felt that the operation was ineffective in alleviating his problems. The last time he went to sick call regarding his right ankle, was one to one and half years after the surgery. Claimant testified that, at that visit, he raised the same complaints and was instructed to walk and play sports.
Claimant testified that he still has pain, although not as excruciating as in the beginning, and that he still experiences pins and needles if he stands for a long time or plays sports. He further maintained that, since the accident, he can no longer play sports at the same level of intensity as prior to the accident and that he has difficulty performing his job as a porter. He stated that he did not feel pain while playing sports; however he felt pain the day after he had played.
Lorraine Grasso testified that she was the nurse on duty in the Sing Sing emergency room on February 28, 1995 and completed
claimant's Inmate Injury Report (Ex. 1). She noted therein that claimant had a moderate amount of swelling with dull constant pain. There is no indication that claimant complained of pins and needles. Grasso testified that, if claimant had reported pins and needles or numbness, she would have entered it on the chart and contacted a physician's assistant or doctor because those symptoms are indicative of something more serious (T:244-45). Grasso has had experience in the orthopedic and neurological units at the Burke Rehabilitation Center, Hospital for Special Surgery and Nyack Hospital. From her experience, she knew the importance of a complaint of pins and needles.
Dr. Andrew Shapiro testified that he has been a podiatrist since 1986 and has treated hundreds of ankle sprains in his career. He has worked for the New York State Department of Correctional Services since 1988, conducting podiatry clinics at Sing Sing once or twice a month.

n June 1995, Shapiro reviewed claimant's x-ray report which showed no fracture and a normal ankle mortise (Ex. A, p. 68). He examined the x-ray and noted that it was negative for fracture. Shapiro testified he reviewed claimant's Ambulatory Health Record (AHR) before treating him. All of the entries relating to the right ankle injury refer to tenderness, swelling and pain. There were no references to pins and needles. Dr. Shapiro diagnosed claimant's injury as an ankle sprain. The course of treatment included eliminating the pain and swelling and improving claimant's range of motion (T:141). Shapiro instructed claimant to perform range of motion exercises[2] (Ex. 5, p. 6). Claimant was told that he could continue walking, but that he should refrain from running (T:143-44).
Shapiro explained that typically, a sprain is first treated with ice, rest, immobilization and anti-inflammatory medications (T:141, 156). If that fails, injections are tried. Thereafter, surgery is considered. A sprain may take two weeks to four months to heal (T:108-10, 149)
and if the ankle is reinjured, the sprain can become a chronic lingering injury (T:150). Claimant reinjured his right ankle in December 1996 and in May 1997 complained of pain from this injury (T:178-79; Ex. D, p. 254). In June 1997, claimant sprained his left ankle (T:161; Ex. C, p. 180). On January 9, 1998, claimant again sprained his left ankle (T:162; Ex. C, p. 161). During Shapiro's treatment of claimant, four anti-inflammatory injections of cortisone and Lidocaine were administered to the front of claimant's right ankle, in the area above his shoelaces (T:103-04). These were ineffective. Since claimant was unresponsive to the anti-inflammatory medications and injections, on August 9, 1995, Shapiro requested a consult with an orthopedist. Claimant was subsequently scheduled for arthroscopic ankle surgery to repair a ligament tear. At that point, Shapiro considered claimant discharged and Shapiro deferred to the expertise of the orthopedist (T:114).
Shapiro testified that he was familiar with tarsal tunnel syndrome, which he described as a nerve entrapment in the tarsal tunnel near the big toe (T:124). He stated that it was characterized by burning, numbness and tingling in the foot from the heel to the toe and up the leg (T:125). Tarsal tunnel syndrome is a "relatively rare condition" and he never saw it develop from an ankle sprain (T:124, 155). Shapiro noted that
claimant never complained of pins and needles or numbness and had claimant done so, Shapiro would have recorded it in his notes because such symptoms reflect nerve entrapment or a metabolic disease (T:132, 146, 149).
Shapiro saw no evidence of tarsal tunnel syndrome during his treatment of claimant and the injections were not part of any treatment related to tarsal tunnel (T:157-58). Shapiro noted the absence of symptoms as well as the anatomical location in his conclusion that claimant did not suffer from tarsal tunnel. Shapiro never used a cast. He considered the Ace bandage initially given to claimant to be sufficient for immobilization. Shapiro did not give claimant a Tinel's Test for tarsal tunnel because claimant did not present any symptoms of tarsal tunnel (T:126-27).
Dr. Gerald Coniglio provided expert testimony on behalf of
claimant. Coniglio is board certified in emergency medicine as well as orthopedic surgery. He is licensed to practice in New York, California, Arizona, Minnesota, Ohio, Michigan and North Carolina. He had been licensed in Connecticut, but allowed that license to lapse.[3] Coniglio is also a law school graduate and admitted to the bar in New York State. He has practiced medicine for 24 years and presently has a website advertising his services as an expert witness. In the past 20 years, he maintains that he has treated 2000 to 3000 ankle injuries, 1000 peripheral nerve disorders (nerves outside the central nervous system) and 300 to 500 cases of tarsal tunnel syndrome. Within the last six months, he has treated approximately 25 cases of tarsal tunnel syndrome.
Coniglio defined tarsal tunnel syndrome as a compressive neurotrophy of the posterior tibial nerve, which is located on the inside of the ankle, between the medial malleolus (bump) and the heel. When swelling and irritation occur within the space where the nerve travels, the area becomes compressed. This creates symptoms in the ankle, foot and lower leg, which include persistent pain, numbness, tingling, burning and decreased feeling. The leg may also give way because the nerve cannot properly control the muscles.

Coniglio considers tarsal tunnel syndrome a fairly common injury that he has diagnosed even in the absence of complaints of tingling (T:312-13). He explained that the syndrome generally arises secondarily to another problem such as a sprain, fracture or metabolic condition like diabetes and that the pain involves the inside of the foot and radiates up the leg to the knee.
In Coniglio's view, the most significant indication of tarsal tunnel syndrome is persistent pain lasting six to eight weeks after the time when an injury would be expected to be less symptomatic. Typically, symptoms relating to a sprain are acute and subside after six weeks, while tarsal tunnel syndrome is characterized by persistent pain, even at rest. Tenderness is also apparent in the tarsal tunnel area. Diagnosis is confirmed by considering the patient's subjective complaints and information derived from a physical examination. Objective analysis is derived from doing an electromyograph (EMG) and performing a Tinel's Test, which involves a poking in the area that sends a shock through the nerve.[4] The standard treatment is to immobilize the joint, administer cortisone injections and, as a last resort, surgery.
Coniglio reviewed
claimant's medical records and noted that the only objective test performed was an x-ray. While the x-ray revealed that there had been no fracture, claimant experienced persistent pain for months. He was given injections that were not effective. Claimant was treated by Dr. Shapiro, a podiatrist, and then referred to an orthopedist. On January 12, 1996, a right ankle arthroscopy was performed by Dr. Jonathan Holder at St. Agnes Hospital. The medical history taken by Dr. Holder is the only documentation within claimant's medical records which states a complaint of "pins and needles after being on feet X 1 hr" (Ex. 4, p. 3; duplicated in Ex. A, p. 7).
Coniglio concluded that
claimant had tarsal tunnel syndrome based upon his complaints of persistent pain, pain at night, difficulty walking, tenderness in the area and tingling. Coniglio opined that defendant deviated from the standard of good medical care because nothing was done to either rule out or to confirm tarsal tunnel syndrome. Coniglio maintained that claimant's partial tear of the deltoid ligament, as evidenced by the MRI taken at St. Agnes Hospital, was close to the tarsal tunnel and suggested that claimant probably had tarsal tunnel syndrome. He further stated that claimant's ankle should have been immobilized with a cast, brace and crutches and that claimant should have been cautioned against walking as well as running (T:349). Additionally, the injections given to claimant should have been administered directly into the tarsal tunnel. Coniglio opined that claimant's injury is permanent, but that it is possible that treatment could alleviate the symptoms and the pain (T:363, 397).
On cross-examination, Coniglio was confronted with
the St. Agnes medical records indicating that claimant had refused crutches after surgery (Ex. B, p. 123). Coniglio conceded that injections outside the tarsal tunnel area would not relieve pain associated with the syndrome and, if a patient said that an injection outside this area relieved the pain, Coniglio would believe that the patient did not suffer from tarsal tunnel syndrome (T:394-95). Coniglio conceded that a severe ankle sprain can lead to ankle weakness and that a patient engaging in sports would be likely to reinjure the ankle. He acknowledged that basketball playing is hard on the joints and may further injure an ankle (T:398-99).
Dr. Michael Elia, a board certified orthopedic surgeon, provided expert testimony on behalf of
defendant. Elia is the Director of Orthopedic Surgery at Lawrence Hospital in Bronxville, New York and treats 130 to 150 patients a week. Of the 7000 to 8000 surgeries he has performed in the course of his career, only a "handful" have been for tarsal tunnel (T:428). He characterized tarsal tunnel syndrome as rare and he has never seen it develop from an ankle injury (T:435).
Elia described tarsal tunnel syndrome as an entrapment of the posterior tibial nerve as it passes through the tarsal tunnel in the ankle joint (T:434). The pressure on the nerve causes symptoms on the medial, inside part of the foot. Numbness and tingling travel from the big toe through the sole. Pain in the calf is less common. The syndrome is generally caused by overweight, flat feet, diabetes or illnesses that cause fluid
Based on the records he reviewed, Elia concluded that
claimant did not have tarsal tunnel syndrome.[5] Elia diagnosed claimant's injury as a grade 2 ankle sprain, even though claimant continued to complain of symptoms for several months (T:481). Elia testified that, in his experience, 20 percent of patients with ankle sprains exhibit chronic symptoms for that length of time (T:441).
Elia testified that ankle injuries were common in basketball players because of the jumping and uneven landings.
Claimant has continued to play basketball after his injury and this could have aggravated his condition. Elia noted that claimant acknowledged at his examination before trial that, while he was not bothered during activity, he suffered the next day. Elia testified that it is typical of a ligament tendon injury that tightens up after activity; however it is not typical of tarsal tunnel syndrome (T:443-44). In Elia's view, claimant has hit a plateau in his recovery and will always have some aching and soreness (T:444).
Based upon a review of the medical records and his experience, Elia opined that
defendant has not deviated from the standard of care in its course of treatment. When claimant first presented at the emergency room, he was examined and x-rayed to rule out a fracture (T:446). Elevation, ice, an Ace bandage and anti-inflammatory medication were proper measures. When claimant continued to complain of symptoms, defendant appropriately referred claimant to a podiatrist who administered injections and gave claimant exercises. When claimant continued to complain he was sent for an MRI. At the one year mark, an ankle arthroscopy was prudent to look inside the joint to be sure that nothing had been missed in prior examinations.
Elia testified that cortisone injections administered to the area outside of the tarsal tunnel would not relieve tarsal tunnel symptoms (T:472-73). While
claimant's medical records do not identify the location of the injections, claimant's and Shapiro's testimony both indicate that they were not within the tarsal tunnel area.
Elia testified that a Tinel's Test is not routinely performed and would only be done if a patient had specific complaints involving the big toe and the tarsal tunnel area. While Elia agreed that the medical notes were less than optimum in their completeness, he stated that each physician keeps records differently and he too may not have indicated negative findings. In
claimant's case, the only written account of pins and needles was in the St. Agnes Hospital records and that did not specify a particular location. Moreover, Elia testified that patients may complain of pins and needles anytime there is swelling (T:439-40). Elia also testified that walking is not contraindicated for an ankle sprain or tarsal tunnel (T:472, 510-11).
Claimant does not contend that Nurse Grasso deviated from the appropriate standard of care in her treatment of claimant (T:388). Rather, claimant alleges that treatment rendered by Dr. Shapiro did not meet the applicable standard of care because he failed to diagnose claimant with tarsal tunnel and then treat the syndrome by immobilizing the ankle and administering shots directly to the tarsal tunnel area.
It is well settled that the State has a duty to provide ordinary and appropriate medical treatment to its inmates (see, Kagan v State of New York, 221 AD2d 7). To establish a claim for medical malpractice, claimant has the burden of proving, by a preponderance of the evidence, that the State departed from the requisite standard of good and accepted medical practice and that such departure was a substantial factor, or a proximate cause, of the claimed injury (see Schrempf v State of New York, 66 NY2d 289, 295; Mullally v State of New York, 289 AD2d 308). "[A] mere possibility of cure does not satisfy a prerequisite to liability;" rather it must be more probable than not that the claimed injury was caused by defendant's malpractice (Mortensen v Memorial Hosp., 105 AD2d 151, 158).
"The degree of reasonable care is measured by the plaintiff's physical and mental infirmities, as known by the defendants" (
Campbell v Cluster Hous. Dev. Fund Co., 247 AD2d 353, 354). Moreover, claimant had a duty to make defendant aware of his symptoms (see Ogle v State of New York, 191 AD2d 878, [inmate's failure to advise defendant's physicians of his medical history contributed to delay in diagnosis and treatment]). The Court does not find claimant to be credible in his testimony regarding his alleged repeated complaints of pins and needles. Notably, there is no mention of such complaint in claimant's grievance. Further, despite claimant's frequent visits to the facility clinic, there is no mention in the AHR of any complaint of pins and needles. Moreover, the Court credited Nurse Grasso's testimony that she appreciated the significance of such complaint and would have recorded it if claimant had reported the symptoms to her. The only documented complaint of pins and needles is one notation in the St. Agnes record. In any event, the diagnosis of tarsal tunnel does not rely solely upon a complaint of pins and needles as there are other medical factors to be considered.
The Court finds the testimony of defendant's expert to be more convincing than that of claimant's expert (
see Vona v Wank, ___ AD2d ___, 755 NYS2d 261 [where conflicting expert testimony is presented, trier of fact may accept one expert's opinion and reject that of the other]; Scariati v St. John's Queens Hosp., 172 AD2d 817 [trier of fact was free to reject conflicting testimony regarding causation]). Defendant's expert testified that tarsal tunnel is a rare condition that he has never seen develop from an ankle injury and that patients may complain of pins and needles anytime there is swelling. Defendant's expert also stated that, without specific complaints involving the big toe and the tarsal tunnel area, a Tinel's Test is not routinely performed.
Claimant admitted that the injections administered to him provided him with temporary relief and they were not injected into the tarsal tunnel area. Claimant's expert conceded that injections administered outside the tarsal tunnel area would not relieve pain associated with the syndrome and, if a patient indicated relief from such shots, then Coniglio would believe that the patient did not suffer from tarsal tunnel. Thus, the evidence does not support a finding that defendant's failure to diagnose claimant with tarsal tunnel constitutes medical malpractice (see Littlejohn v State of New York, 87 AD2d 951 [State's failure to diagnose inmate's condition did not constitute medical malpractice]).
"The mere fact that the plaintiff's expert would have opted for a different treatment, without more, ‘represents, at most, a difference of opinion among [physicians], which is not sufficient to sustain a prima facie case of malpractice' " (
Weinreb v Rice, 266 AD2d 454, 455; Stuart v Ellis Hosp., 198 AD2d 559 [expert's opinion that patient should have had a more thorough examination including x-rays was insufficient to establish a prima facie case of medical malpractice]). For liability to ensue, it must be shown that the medical provider's treatment decision was "something less than a professional medical determination" (Darren v Safier, 207 AD2d 473, 474; see also Fotinas v Westchester County Med. Ctr., 300 AD2d 437; Ibguy v State of New York, 261 AD2d 510). Claimant's contention that walking was contraindicated for tarsal tunnel and that claimant's ankle should have been immobilized is refuted by the testimony of defendant's expert and not persuasive in light of claimant's refusal of crutches and his continued sports activity.
Accordingly, the Court finds that
claimant has failed to establish, by a preponderance of the evidence, his claim of medical malpractice.
Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.

May 15, 2003
White Plains, New York

Judge of the Court of Claims

[1] All references to the trial transcript are preceded by the letter "T."
[2] While Shapiro's first note in the AHR is undated, the visit appears to have been between June 8 and June 17, 1995. The visit is recorded as a subsequent office visit, but no prior office visit is in the record.
[3] On cross-examination, it was established that Coniglio had 11 malpractice cases resolved with monetary payments in North Carolina and one in California.
[4] Coniglio did not examine claimant, nor did he order any diagnostic tests to be performed on claimant, such as a Tinel's Test, a nerve conduction velocity test, or an electromyogram (T:368-70).
[5] Elia did not examine claimant nor conduct any tests on him (T:450).