New York State Court of Claims

New York State Court of Claims

GIAMBRONE v. THE STATE OF NEW YORK, #2003-010-041, Claim No. 107028


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:
Defendant's attorney:
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 17, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant alleges that, during his incarceration at Sing Sing Correctional Facility (Sing Sing), defendant failed to provide him with adequate medical care in regard to a skin condition.
Claimant testified that since 2000, antibacterial and antifungal medications have been prescribed for him for an ongoing skin problem. He maintains that an initial possible diagnosis of tinea versicolor, made at Sing Sing, has followed him to several other correctional facilities. Consequently, for the last two years, he has been treated with creams with steroids that have caused him to suffer from headaches, rashes and itching. Claimant also testified that, when he was incarcerated near Rochester, a dermatologist at Strong Hospital diagnosed the problem as rosacea and treated claimant with a non-steroid cream. According to claimant, this cream was the treatment he preferred. Claimant introduced his Ambulatory Health Record into evidence (Ex. 1). Claimant did not present any expert testimony.
Dr. John Perilli, the Director of Medical Services at Sing Sing, testified on behalf of
defendant. Perilli stated that claimant first sought medical attention for a fungus on February 3, 2000 and was initially seen by a nurse. On March 7, 2000, Dr. Maw prescribed an anti-fungal cream, Lotrimin, and thought that claimant might have tinea versicolor. On September 1, 2000, claimant presented with continuing skin eruptions. He was then scheduled for another appointment with Dr. Maw, but claimant failed to appear. On December 18, 2000, claimant had a dermatology consult and a diagnosis was made of possible tinea versicolor. The plan noted on the consult form was to observe and if there was a reoccurrence, to give oral medications (Ex. 1). Dr. Perilli noted that dermatology is 85 percent visual recognition. In his opinion, the proper diagnostic route was taken. Consistent with good medical care, claimant was examined, a presumptive diagnosis was made and treatment rendered.
"[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 Home, 262 AD2d 624; Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256). However, where 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 New York, 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). A departure from good and accepted medical practice cannot be inferred from expert testimony; rather the expert must expressly state, with a degree of medical certainty, that defendant's conduct constitutes a deviation from the requisite standard of care (see Stuart v Ellis Hosp., 198 AD2d 559; Sohn v Sand, 180 AD2d 789; Salzman v Alan S. Rosell, D.D.S., P.C., 129 AD2d 833).
In the instant case,
claimant alleged that defendant failed to provide him with adequate medical care. This is belied by the record. Claimant's medical records show that he received ongoing treatment and medical care for his skin condition. Additionally, the Court finds the testimony of Dr. Perilli to be most convincing (see Scariati v St. John's Queens Hosp., 172 AD2d 817 [trier of fact was free to reject conflicting testimony regarding causation]).
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 (
see Wells v State of New York, 228 AD2d 581; Mosberg v Elahi, 176 AD2d 710, affd 80 NY2d 941; Quigley v Jabbur, 124 AD2d 398). Claimant has failed to establish that defendant was negligent and that such negligence proximately caused claimant any harm for which money damages would be appropriate (see Naughton v Arden Hill Hosp., 215 AD2d 810 [even assuming defendant committed malpractice in its failure to diagnose and admit patient to hospital, there was no proof of proximate cause, i.e., that, had the patient been admitted, the risk of a heart attack would have been prevented or lessened]; Brown v State of New York, 192 AD2d 936 [no proof that delay in treatment contributed to the loss of claimant's larynx]).
Accordingly, the claim warrants dismissal.


February 17, 2004
White Plains, New York

Judge of the Court of Claims