New York State Court of Claims

New York State Court of Claims

BIANCO v. THE STATE OF NEW YORK, #2003-013-006, Claim No. 106630, Motion No. M-66022


Synopsis


Motion for an order directing DOCS to provide, at State expense, an MRI in order to determine the extent of Claimant's injuries is denied as premature, since liability has not yet been determined.

Case Information

UID:
2003-013-006
Claimant(s):
FRANK BIANCO
Claimant short name:
BIANCO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106630
Motion number(s):
M-66022
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
COSTELLO & COSTELLO, P. C.BY: YOLANDA K. HUNT, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 18, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


On November 20, 2002, the following papers were read on Claimant's motion for an order directing the State to provide an MRI for Claimant:
1. Notice of Motion and Supporting Affirmation of Yolanda K. Hunt, Esq.

2. Affirmation in Opposition of James L. Gelormini, Esq.

3. Filed Papers: Claim; Answer

This is a claim for personal injuries based on allegations that Claimant, an inmate at Orleans Correctional Facility, injured his shoulder, hip, and back when he tripped into a construction ditch that had not been properly filled in. The claim also, rather confusingly, alleges that the State was negligent for its "failure to treat" and in providing inadequate instruction on "the proper use of treating inmates" (Claim, ¶ 2).
By this motion, counsel for Claimant asks the Court to direct the State to provide and pay for an MRI (Magnetic Resonance Image) of his injuries so that Claimant can determine the type and extent of his injuries. Claimant recounts that, after he received an x-ray at the facility, which revealed no broken bones, he telephoned his parents in Florida, informing them of the incident. They consulted with their family physician, explained their son's complaints, and, reportedly, were told by the physician that those complaints were consistent with torn ligament muscles and that it would require an MRI to diagnose this condition. This information was taken back to the facility doctor by Claimant, but the doctor denied the request that an MRI be performed on Claimant.

Claimant's counsel states: "A review of Bianco's medical records will indicate that the injuries he sustained require diagnosis by an MRI ... " (Hunt Affirmation, ¶8). This is simply not the type of conclusion that any Court could draw in the absence of expert testimony, and no medical affidavit has been presented to the Court.

Claimant's counsel also states that it is "impractical" for Claimant to retain his own physician or get a second opinion, as has been suggested by officials at the correctional facility, because he is incarcerated (id., ¶9). I am confident that if arrangements were made by or on behalf of Claimant for a physician to examine him or to perform medical tests on him, and if Claimant was willing to pay the attendant fees and costs, getting Claimant to the physician would be quite possible. The submissions now before me do not establish that Claimant has been deprived of an opportunity to consult a physician of his choice or to have an MRI performed, only that he is unwilling to do so at his own expense.

Although the claim refers to a rather generic "failure to treat," the only factual allegations relate to the condition of the prison's recreational fields and the State's responsibility for those fields. The most logical solution at this juncture, therefore, is that suggested by counsel for Defendant: bifurcating the trial of this action and first determining the issue of liability. Only if the State is liable for Claimant's injuries will the issue of the extent of those injuries come under consideration. The appropriate course of action at that point would be, as was advised by another judge of this Court, for Claimant to "secure the services of a physician willing to examine and testify for him, to inform DOL and/or DOCS that he has done so and request transportation to the examination" (Moore v State of New York,Ct Cl, Nov. 1, 2000 [Claim No. 100767 - Motion No. M-62030 - MacLaw No. 2000-028-101521], Sise, J).

Claimant's motion is denied.


March 18, 2003
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims