New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2003-013-015, Claim No. 104786, Motion No. M-66182


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):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 15, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On February 19, 2003, the following papers were read on Claimant's motion for summary judgment in his favor:
1. Notice of Motion and Supporting Affidavit of Jason M. Kobin, Esq. ("Kobin Affidavit"), with Annexed Exhibits, including Affidavit of Ronald Citron, M.D. ("Citron Affidavit")

2. Affirmation in Opposition of Reynolds E. Hahn, Esq. ("Hahn Affirmation")

3. Affidavit of Nancy Anthony, Department of Correctional Services ("Anthony Affidavit") in Opposition to the Motion

4. Affirmation of Thomas C. Mahl, M.D. ("Mahl Affirmation") in Opposition to the Motion

5. Affirmation of Raelene Milicevic, M.D., Department of Correctional Services ("Milicevic Affirmation") in Opposition to the Motion

6. Affidavit of Agnes M. Peters, Department of Correctional Services ("Peters Affidavit") in Opposition to the Motion

7. Affidavit of Cynthia Y. Doherty, Department of Correctional Services ("Doherty Affidavit") in Opposition to the Motion

8. Reply Affidavit of Jason M. Kobin, Esq. ("Kobin Reply Affidavit")

9. Filed Papers: Amended Claim; Answer to Amended Claim; Decision and Order (Claim No. 104786 - Motion No. M-64726 - Cross-Motion No. CM-65039), June 18, 2002

This medical malpractice claim arose, it is alleged, over a period of years at various correctional facilities operated by the New York State Department of Correctional Services (DOCS). Claimant alleges that between July 1995 and December 1998 his symptoms of rectal bleeding and abdominal pain were consistently ignored and/or misdiagnosed by DOCS medical staff. In December 1998, a cancerous lesion in his colon was discovered, leading to several surgeries and chemotherapy treatments. In connection with the earlier motion, as recited above, I determined that Claimant's treatment at the several facilities constituted continuous treatment (CPLR 214-a).


It is necessary at the outset to discuss a point of contention that runs throughout the arguments of both parties to this action. A portion of Claimant's original medical records are missing and can no longer be found by DOCS. According to Cynthia Y. Doherty, DOCS Health Information Administrator, the original records for the period from June 29, 1995 to September 1998 are missing and unlikely to be found. Claimant makes rather sweeping assertions about what the missing records would reveal if they could be found and argues that, because it was Defendant who lost the records, "the loss of the original medical record had a fraudulent purpose and that, if produced, the medical record would have revealed facts contrary to Defendant's interest" (Kobin Affidavit, ¶48). Defendant asserts that in April 1999 a copy of the complete medical record was sent to Claimant's "agent," an attorney with whom Claimant had consulted, and thus were and are available to Claimant (Hahn Affirmation, ¶15). Indeed, copies of medical records covering the time period in question have been acquired from that attorney and, along with others, are contained in Exhibit I of the motion papers herein.

In December 2001, Defendant informed Claimant that the State had been unable to turn up the missing medical records, but added that the file contained a letter from another attorney, E. Stewart Jones, "requesting limited records" (Exhibit E to the Motion). The letter from the Jones firm (Anthony Affidavit, Exhibit A) requested copies of only selected parts of the record, most of them appearing to relate to Claimant's operation.[1] On the face of that letter, however, is a handwritten notation: "4/14/99 Medical: Entire Medical Record is needed. D. Hunt" and, at the bottom of the page, "done 4/17/99." Donna Hunt was the Inmate Records Coordinator for Eastern Correctional Facility (Eastern) (Anthony Affidavit, ¶7). Claimant acknowledges that he told Nurse Anthony, who was in charge of making the copies, to "copy the whole thing" and send it to the Jones firm (Exhibit J to the Motion, EBT Transcript, [hereinafter "EBT Transcript"] p. 82). Claimant also acknowledges that at the time he reviewed the file with Nurse Anthony, just prior to the copy being sent to the Jones firm, the file appeared to him to be complete, with nothing missing (id., pp. 83, 84, 87).

A review of the existing copies of the 28 pages covering the period from July 1995 to September 1998 (Exhibit I to the Motion, Medical Records [hereinafter "Medical Records"]) reveals that they are comprised of Claimant's Ambulatory Health Record (AHR), including some test results. The dates of all entries in the AHR pages are chronologically consistent and there are no apparent gaps.[2] This material contains quite different information than the limited list that was initially requested by the attorneys (see footnote 1), providing further confirmation that a copy of the entire record was sent to them.

Nancy Anthony, a nurse at Eastern, states in an affidavit that she would have been the person to make copies of the records and that, because the request sheet carries an April 14, 1999 instruction from the Inmate Records Coordinator that the entire record was needed, that is what she would have copied (Anthony Affidavit, ¶¶ 7, 8). As noted above, Claimant himself recalls going over the entire medical record with Nurse Anthony and requesting that "the whole thing" be sent to the lawyers and that all of the information -- including notations of his frequent complaints of rectal bleeding and repeated hemorrhoid medication refills at the various facilities -- was present (EBT Transcript, pp. 82, 83, 84, 87). In contrast, Claimant testified, after the copy had been sent to the lawyers, but before it was returned to him, that he participated in another review of the original file, this time with a Dr. Milicevic (EBT Transcript, p. 85), On this occasion, he stated, the references to complaints and treatment of the rectal/abdominal problems were missing.

Dr. Raelene Milicevic was the doctor at Eastern who first referred Claimant for an outside consult and endoscopy to check out his complaints of rectal bleeding. The review of medical records that she conducted occurred in September 1998 (i.e., approximately seven months before they were copied by Nurse Anthony), when she made out the referral. She further states that she has since reviewed the records submitted on this motion and affirms that "[t]he Ambulatory Health Records provided by Claimant for July, 1995 through September, 1998 are complete" (Milicevic Affirmation, ¶3).

On Dr. Milicevic's September 24, 1998 referral form (id., Exhibit A, p. 2), she stated, "Recurrent episodes [of] rectal bleeding in 95 & 97 & again now, this one medically confirmed." This statement, she indicates, was based on her review of Claimant's entire medical record and her discovery of references to rectal bleeding in the entries for July 7, 10 and 17, 1995; September 15, 1995; and June 25, 1997. As indicated below, these references are, in fact, the only ones (prior to Claimant's transfer to Eastern) that are contained in the records now before me.

It is evident that the statement in Dr. Milicevic's September 1998 referral was based on a review of the same records (at least in content) that are now before the Court. According to Claimant, however, the complete information was found in the records when he reviewed them with Nurse Anthony, something that occurred several months later, in April 1999. Yet, when a copy of the records was sent to the Jones firm by Nurse Anthony, or at least when they were returned to Claimant by that firm, the entries that are most material to this action were once again missing. It might be possible to come up with a reasonable explanation for such a bizarre, unlikely sequence of events, but none has been offered. In addition to that highly improbable sequence of events, the fact that there are no gaps or apparent missing pages in the AHR presents a compellingly strong reason to conclude that the records now before the Court are complete. The AHR is the physical document where every medical contact between inmate and facility medical staff, even for very minor complaints, is noted and where all medications and medication refills are listed. Therefore, the information that Claimant says is missing would have to have been part of that record. Because of the structure of the record itself (see footnote 2), it would not be possible, however, for anyone to have removed "numerous" selected entries without creating at least several obvious gaps or "disconnects" in the pages remaining. There are none.

I conclude, therefore, that the medical records covering the period from July 1995 to September 1998 that are submitted on this motion are, in fact, copies of Claimant's complete medical records for that time period and that they duplicate what would have been in the original DOCS file. Accordingly, arguments by either party based on the fact that the original records are missing will be disregarded.


July 1995, Livingston Correctional Facility

In July 1995, Claimant, who was 22 years old, entered Livingston Correctional Facility (Livingston), and during the initial interview with the facility medical staff on July 7, he complained of abdominal pain and rectal bleeding. He was initially given Maalox, but after he made further similar complaints on July 10, he was told that he could see a physician on July 24 (Medical Records, p. 1). He was actually seen by a physician on July 17.[3] The doctor's notes indicate that Claimant was complaining of rectal bleeding and diarrhea but that his physical examination was "unremarkable," his abdomen soft and flat. A stool examination was ordered. That sample was checked only for OVA, cysts and parasites, with negative results (Medical Records, pp. 2-3), and this information -- only -- was noted by the doctor on July 26. The next entry was made on July 29, when Claimant was examined after an altercation. There is no reference to the rectal/abdominal problem in this entry, but it does contain the notation "N/S MD C/U 7-26," which apparently is medical shorthand for "no show [for] doctor checkup [on] 7/26."

Turning to Claimant's testimony regarding this early time period, he stated that he first experienced bloody stools and abdominal pain when he was at Collins Correctional Facility (Collins), about two weeks before he was transferred to Livingston in late June 1995 (EBT Transcript, p. 25). He reported the bloody stools to a nurse at Collins and was told that she would schedule an appointment so that he could be tested by a doctor. Claimant was transferred to Livingston shortly thereafter, however.

About a week after transferring to Livingston, Claimant was given a medical intake interview. He again recited the problems and was given Maalox and Motrin. He continued to have problems and on July 10 put in for sick call, again seeing the same nurse. Claimant said he saw "someone" in order to give a stool sample, but that the next time he saw a doctor was around July 26 or 28, after he had been transferred to the Special Housing Unit (SHU). Claimant's testimony, therefore, contained no reference to the July 17 examination that is noted in his medical records.

Claimant testified that after he was placed in SHU a physician went to see him there. The doctor informed him that he had had a negative stool exam and that "[t]hey didn't find anything wrong" (EBT Transcript, p. 31). He was not given a physical examination at that time, but was told that he probably had hemorrhoids, that he should continue taking the medication for an upset stomach, and that he should use a hemorrhoid ointment, which the doctor gave him (EBT Transcript, p. 31). Nor, according to Claimant, was he physically examined a short while later when he was escorted from SHU to the medical unit for emergency sick call because of pain. He stated that he was given more hemorrhoid cream on that occasion (EBT Transcript, pp. 34-35).

According to the medical records, Claimant was transferred to SHU on July 29 following an altercation (Medical Records, p. 4), but there is no indication of a visit from a doctor around that time, and his only emergency sick call, on August 8, was for treatment of apparently self-inflicted lacerations on his forearm, fingers, palm and wrist.

August 1995 - January 1996, Livingston Correctional Facility

The medical records contain no further reference to the rectal/abdominal problem until September 15. On that date, a nurse noted a small amount of blood on toilet paper "probably [due to] hemorrhoids," and vomit next to the toilet. Claimant was given cream for the former and Maalox for the latter, and a note was made for him to see the doctor on weekly rounds. On September 20, a physician noted "schedule MD call next week." No doctor's appointment took place, however, although he was seen by a nurse on September 23 for a cough and sore throat. The medical records contain no further reference to abdominal or rectal problems before his departure from Livingston in January 1996. He was seen several times by nurses and once by a doctor for other problems: the sore throat, skin rash and genital sores.

Referring to the September 15 episode, Claimant testified that this was the only occasion on which any facility staff actually observed any of the blood, in this case on the toilet seat and toilet paper (EBT Transcript, p. 38). Claimant testified that the bleeding continued throughout the period from September 1995 to January 1996, that it would stop only for one or two days at a time, and that he continued to be provided with refills for Maalox and hemorrhoid cream (EBT Transcript, pp. 36-38).

January - June 1996, Attica Correctional Facility

In January 1996, Claimant was transferred to Attica Correctional Facility (Attica). The "out draft" medical notes made at Livingston noted only his rash, genital sores and psychiatric history (Medical Records, p. 11). The intake notes from the health screening at Attica noted the psychiatric history but stated "no medical problem noted." Claimant, however, testified that when he arrived at Attica, "I told them that I had bloody bowel movement and stomach pain. I was vomiting. I couldn't keep down my food" (EBT Transcript, p. 40). Again, he said, he was given Maalox and hemorrhoid cream. Claimant stated that during his incarceration at Attica, he was not seen by a doctor, although he continued to suffer from abdominal pain and rectal bleeding in something like a "cycle." "The whole week can be worse and then the next following week it will slow down. Then it will pick back up" (id., p. 50). While at Attica, his medications (Maalox, Motrin, hemorrhoid cream) were consistently renewed, and in addition to making complaints about the bleeding and pain, he also reported to sick call on one occasion to be seen because of extreme weight loss. The medical records have only one entry from his stay in Attica which contains an illegible word and notes two dates, one in May 1996 and one in early June 1996 (Medical Records, p. 12).[4]

June 1996 - June 1997, Clinton Correctional Facility

On June 20, 1996, Claimant was readied for transfer to Clinton Correctional Facility (Clinton), and the review of his medical chart indicated "no acute medical problems noted" and "no current meds or [prescriptions]" (Medical Records, p. 12). The intake note at Clinton states "[no] current problems." Although he was treated in the Clinton medical unit in November 1996 and several times in April 1997, all treatment related to cuts and abrasions, and the only medicine applied or dispensed was an antibiotic, betadine, and a refill of lip balm (Medical Records, pp. 13-15).

According to Claimant, however, at his intake medical interview at Clinton he told prison officials about his "history with rectal bleeding and abdominal pain, weight loss among other things" and informed them of the several medications he was using (EBT Transcript, p. 51). He was told to continue using those medications, although he replied that he didn't think they were working. During his time at Clinton, Claimant stated that he was seen at sick call, but never by a doctor and he was never placed in the infirmary.

June 1997 - September 1998, Southport Correctional Facility

On June 25, 1997, on the incoming draft to Southport Correctional Facility (Southport), under "current medical problems" it was noted that Claimant had complaints of "Bloody BMs" and under "chronic medical problems" the notation was "none." Orders were written for "hem supp" (hemorrhoid suppositories) and Fiber Con tablets (Medical Records, p. 16). There was no further reference to these problems while he was at Southport and no mention of any refills for either medication. Claimant was seen, however, for a number of physical problems: penile warts, a request for a mental health referral, sore feet, acne, request for HIV testing, ankle weakness, possible eczema, canker sore, body rash, and, on July 18, 1998, "pain in mid epigastric area [with] eating" (Medical Records, pp. 17-27). During this time he was given several medications and medical supplies, including Phisoderm or PH cleanser, arch supports, Advil (for his feet), ankle brace, Orabase (for canker sore), Benadryl, several refills of HC cream (for rash), and Alamag (for stomach pain). The records contain no mention of Maalox or hemorrhoid cream.

At his examination before trial, Claimant confirmed that during the intake interview he told the nurse about "the rectal bleeding, the abdominal pains, so on" (EBT Transcript, p. 55). He also said that he reported that he felt worse than he had before and that he was very weak. In December 1997, according to Claimant, he received his five-year physical, which consisted of an x-ray, a blood sample and being weighed.[5] Claimant said that he did not see a doctor while at Southport and that he recalled no other complaints except the bloody stools, abdominal pain and feelings of weakness and exhaustion. Later in the examination, Claimant stated that he had felt the worst while he was at Southport, in April or May.[6] "I was in so much pain that I was the whole 21 cells in Southport all the guys was screaming for the C.O. to come over because I was in pain [sic]" (id., p. 65). The medical records for these months, however, list only complaints for rash and eczema, and a request for (apparently) the results of his five-year physical examination (Medical Records, pp. 25-26).

September 1998, Eastern Correctional Facility

On September 10, 1998, notes from Claimant's medical intake interview at Eastern indicate that he had complaints of a fine body rash, itching and "occ bright red blood in stools" (Medical Records, p. 28) and that he was taking no medications (id., p. 29). On September 15 he complained of lower back pain and was given a three-day supply of Motrin. The following day there was a notation of "BRB stool," and on September 18 he was examined by a physician. The doctor's notes indicate that Claimant reported "rectal bleeding on and off 95 & 97" and "bleeding daily since Oct 97 up to now" (id., p. 31). From that point on, medical attention was focused on the problem, and treatment and testing was fairly constant, concluding with a colonoscopy on December 8, which revealed the cancer. The surgeon's notes of the initial interview with Claimant stated, "The patient has had rectal bleeding for about three years with a 10-12 pound weight loss and diffuse abdominal pain.... He has been having abdominal discomfort for about one year or so, however, he has been bleeding for about three years" (id., p. 40).

Claimant's testimony regarding his intake interview at Eastern indicates that he informed the medical staff about the bleeding and the medications he was taking, Motrin and the hemorrhoid ointment (EBT Transcript, p. 64). At his first visit with a doctor, he stated, he was given a digital examination for the first time and hemorrhoids were ruled out.


Claimant's expert, Ronald Citron, M.D., stated in his affidavit that he based his opinion and conclusions on the medical records, the pleadings and Claimant's deposition transcript (Exhibit K to the Motion, Citron Affidavit [hereinafter "Citron Affidavit"]). With one exception, Dr. Citron's conclusions that the State's doctors deviated from the accepted standard of medical care are based on the underlying, but undefined, "signs and symptoms at each presentation from July 1995 through December 1998" (Citron Affidavit, ¶5). The affidavit contains an all-inclusive list of symptoms in a single statement: "bloody red stools, rectal bleeding, abdominal pain, nausea, vomiting, weight loss and fatigue" (Citron Affidavit, ¶4), and Dr. Citron makes no effort to specify how many "presentations" there were or what the signs and symptoms were on each occasion. The only specific allegation of medical negligence is that the stool sample analysis, which was performed in mid-July 1995, should have included a test for the presence of blood, as well as for parasites (id., ¶5).

Defendant's expert, Dr. Thomas C. Mahl, naturally contends that Defendant did not depart from the accepted standard of care, but the reasons he gives for this conclusion are far more specific and based on actual information. He reviews each of the entries in Claimant's medical records that relate to the abdominal/rectal complaints, noting that prior to his transfer to Eastern, complaints were made only in July 1995 (three occasions within ten days), September 1995 (one occasion), and June 1997 (one occasion). He also notes that Claimant was given hemorrhoid cream and Maalox on only one occasion (September 15, 1995), hemorrhoid suppositories and Fiber Con tablets on one occasion (June 25, 1997), and that there were no refills of any of those medications. During this same three-year span, he points out, Claimant made complaints about, and received treatment for, a number of other unrelated medical problems, and he received other medications and occasionally refills for those medications. Dr. Mahl also notes Claimant's young age (22 in 1995) and the rarity of colorectal cancer in the population under 30 years of age; the fact that his weight remained consistently around 160 pounds until February 1999, after the cancer had been diagnosed (Mahl Affirmation, ¶14); and the normal blood profile that was obtained when Claimant received his five-year examination in January 1998 (id., ¶13, referring to Exhibit A). That blood profile was relatively unchanged from the profile that had been obtained in 1994 (id., ¶15, referring to Exhibit C).

Dr. Mahl does not specifically address the decision, in July 1995, to test the stool sample only for parasites, but he does not dispute Claimant's assertion that he had blood in his stool at that time. He states that despite the report of blood in his stool, "Claimant did not exhibit any symptoms that would justify an endoscopic examination such as a colonoscopy prior to September 1998" (id., ¶17). Acknowledging the invasive nature of a colonoscopy and the risks associated with the procedure, [7] Dr. Mahl concludes that a reasonable physician would not have ordered such a procedure or even conducted an "aggressive work-up" of Claimant's symptoms in view of the rarity of his complaints, his normal blood work, his normal weight, and the extraordinarily low risk of colon cancer in patients of his age (id., p. 18).


Summary judgment is a drastic remedy that should only be granted when no material and triable issue of fact is presented (Taft v New York City Transit Auth., 193 AD2d 503, citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). To warrant summary judgment, "there must be only one conclusion that can be drawn from the undisputed facts" (Sanchez v State of New York, 99 NY2d 247, 254). While summary judgment is not frequently granted in negligence cases, as they typically involve numerous factual issues, including whether the defendant's actions were reasonable (Rubin v Reality Fashions, 229 AD2d 1026), it is nevertheless appropriate where there are no factual issues that must be resolved by a trial (Pencola v Stefanich, 244 AD2d 999). As pointed out by Defendant, the disputed issues presented here are "the opinions of the experts" and "the facts upon which their opinions are based" (Hahn Affirmation, ¶16).

As to the facts on which the experts' opinions are based, I am convinced that there could be no proof that would lead to the conclusion that the medical records submitted here are incomplete or that, where the records differ from Claimant's testimony, that such testimony could be credited. If there was additional, and probative, evidence to suggest that the records obtained from the Jones Firm and submitted on this motion are somehow incomplete, I am confident that Claimant's counsel would have presented such evidence on this motion. Those records contain very few notations of complaints made by Claimant regarding rectal bleeding or abdominal pain or treatment provided to him for those conditions. The records do contain extensive notes regarding complaints about, and treatment for, a number of other ailments, many of them far more insignificant, establishing that it was the common practice of facility medical staff to record information about complaints and treatment in the Ambulatory Health Record. The only competing evidence about what the State's medical staff knew about this condition is Claimant's quite different account given at his examination before trial, which has been thoroughly reviewed above.

Normally, in the face of such contradictory evidence, a question of credibility is presented, and that is something that must be resolved at trial by the finder of fact (Orloski v McCarthy, 274 AD2d 633, 635). This situation is somewhat unique, however, because no matter how compellingly Claimant might testify at trial, it would in the end be impossible to credit his account of events. "Although credibility questions are generally reserved for the jury, in certain circumstances credibility may be properly determined as a matter of law" (Curanovic v New York Cent. Mut. Fire Ins. Co., _____ AD2d _____, 762 NYS2d 148, 152). Where one party's factual statements are both self-serving and incredible, summary judgment may be awarded to the other party (id.; see also, Home Mutual Ins. Co. v Lapi, 192 AD2d 927 [discussing these "instances of implausibility"]).

It has been determined previously that the medical records submitted on this motion contain the complete Ambulatory Health Record for the period covering July 1995 to September 1998, that no pages, and therefore no entries, are missing. That being the case, in order to believe Claimant's testimony, there would have to be some plausible or possible explanation for the fact that those records contain only a few, isolated references to his rectal/abdominal problems. To believe both that the records are complete and Clamant's testimony about numerous, continual complaints made at every facility and continued, inappropriate treatment with Maalox and hemorrhoid cream, it would be necessary to accept that there was something which could only be called a conspiracy, one spanning three years and involving the medical staffs of at least four different correctional facilities. These putative conspirators would have had to act in a coordinated fashion to refrain from making notations about the majority of any complaints, symptoms or treatment relating to Claimant's rectal/abdominal problem. The existence of such a pointless conspiracy is incredible, as is the likelihood that it could have been carried out so successfully. Nevertheless, if, as I have determined, the Ambulatory Health Record is complete, such a conspiracy seems the only possible explanation that could allow Claimant's account of events to be true. Consequently, as to this factual issue, it would be impossible, even after trial, to conclude that DOCS' knowledge of Claimant's rectal/abdominal problem was any other than what is recorded in his Ambulatory Health Record.

The only remaining dispute that could require a trial to resolve is the one created by the differing conclusions of the two medical experts. To prove an action based on allegations of medical malpractice, the injured party must establish that there was a "deviation or departure from accepted practice" and that "such departure was a proximate cause of injury or damage" (see, Prete v Rafla-Demetrious, 224 AD2d 674, 675). Liability may not be imposed for honest errors of medical judgment, but is appropriate to assess responsibility if the medical decisions were not based on "intelligent reasoning or upon adequate examination" (Snow v State of New York, 98 AD2d 442, 447, affd 64 NY2d 745).

As a general rule, expert medical testimony is required to establish a prima facie case of malpractice (Morgan v State of New York, 40 AD2d 891, affd 34 NY2d 709), and on a motion for summary judgment the experts' opinions are presented in the form of affidavits or affirmations. When an expert's affidavit consists of only "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements" of the claim, then it cannot establish such a prima facie case on a motion for summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320, 325).

In Lynn G. v Hugo (96 NY2d 306), an expert retained by the defendant (who was the party seeking summary judgment in that case) submitted an affidavit reviewing the medical records and deposition testimony and based his opinion regarding the lack of negligence on specific facts of the case that were undisputed (e.g., the absence of a certain diagnosis in the patient's medical history; lack of any connection between medication she was taking and having the condition; the actual time lapse between two different procedures). In contrast, the two expert affidavits submitted by the plaintiff were based on "surmise," "unsubstantiated assertions or speculations," and conclusory assertions that were inconsistent with or unrelated to the actual facts of the case (id., p. 310). Although both Supreme Court and the Appellate Division had held that summary judgment was inappropriate because of the issues raised by these conflicting expert affidavits, the Court of Appeals reversed, holding that the plaintiff's experts' affidavits were "insufficient to create a trial issue of fact" (id.; see also, Lucenti v St. Elizabeth Hosp., 289 AD2d 983).

In the instant case, the facts on which Dr. Citron's opinion is based are not recited, and to the extent that he may have relied on portions of the deposition testimony that contradict the medical records, it has been determined that that factual basis is unsound. The only specific act that he identifies as negligent, the failure to test the stool sample for blood, is essentially unexplained. He does not identify the course of action that would, or should, have been followed if they had confirmed the presence of blood or even point to evidence suggesting that the medical staff doubted the report of blood. Dr. Citron asserts that such laboratory confirmation of the presence of blood would have suggested a diagnosis of cancer or warranted the type of invasive procedure that would be necessary to detect cancer. It is not enough to prove medical negligence; it must also be proven that such negligence led to actual injury or harm (see, Prete v Rafla-Demetrious, 224 AD2d 674, supra; Badola v Kampessis, 279 AD2d 490, 491, lv denied 96 NY2d 709; Lyons v McCauley, 252 AD2d 516). In view of its marked deficiencies, I hold that the affidavit of Dr. Citron is not sufficient to make out a prima facie case of medical malpractice or even to raise a triable issue of material fact.

CPLR 3212(b) provides that, "[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion." The purpose of such a statutory provision, which can be found in the Federal Rules of Civil Procedure, as well as the laws of many other states, is to promote the "prompt disposition of the action where there is no genuine issue regarding any material facts" (97 NY Jur 2d, Summary Judgment, §54; cf., Ostrowski v State of New York, 186 Misc 2d 890, 895 [where Judge Donald J. Corbett, Jr., granted partial summary judgment as to liability to the non-moving Claimant, when the State sought summary judgment dismissing the claim]).

Liability in this case rests on a rather clear-cut premise: that DOCS' medical personnel deviated from the accepted standard of medical practice when, over a three-year period, they ignored and/or misdiagnosed Claimant's frequent and continued complaints of rectal bleeding and abdominal pain, thereby delaying accurate diagnosis of his colorectal cancer. Because I have determined that the Ambulatory Health Record is both complete and reasonably accurate, there is no dispute about the number or nature of Claimant's complaints or about the response made to those complaints by the medical staff. With respect to the question of whether those responses were negligent so as to give rise to liability, Claimant, who bears the burden of making a prima facie case and showing entitlement to judgment as a matter of law (Cox v Kingsboro Med. Group, 88 NY2d 904, 906), has produced only an expert affidavit that is conclusory, unsupported and insufficient to establish even the existence of a material issue of fact. I am confident that counsel for the Claimant marshaled the best evidence possible in support of his client's claim. Unfortunately that best evidence is not, and cannot be, sufficient to prove the claim or to establish that the State is liable for harmful delay in diagnosing Claimant's tragic disease. In my view, it would be a waste of judicial resources and a waste of the parties' resources to prolong this matter when the outcome is certain. Consequently, I will exercise the Court's authority under CPLR 3212(b) and grant summary judgment in Defendant's favor, dismissing the claim.

I make this finding in the full realization that some time ago I denied both Claimant's motion for permission to file a late claim and Defendant's cross-motion to dismiss, and allowed Claimant to serve and file the amended claim herein with respect to a purported incorrect date of accrual asserted in the original claim. My earlier extensive review of the allegations and defenses asserted by the parties resulted in certain relief in Claimant's favor, while my current analysis of the written submissions of the parties and, inter alia, their experts, resulted in relief on Defendant's behalf. Without wishing to sound self-serving, I believe that Claimant has been given a full and fair opportunity to present a prima facie case. The result here, infrequently rendered, was not one which I would have predicted, but it was dictated by the submissions before me. The claim must be, and hereby is, dismissed.

September 15, 2003
Rochester, New York

Judge of the Court of Claims

  1. [1]The letter specifically requested: (1) admission sheet and discharge summary; (2) operative reports (as to each surgical procedure); (3) x-ray reports; (4) progress notes; (5) history and physical; (6) emergency room record (where applicable); and (7) consultation notes.
  2. [2]The AHR entries are kept on a standard form which has space for three separate entries, one of which is to be filled in whenever there is contact between the prisoner and medical staff. Each entry is dated, and on occasion a single page will contain, for example, two entries from one month and a third entry dated several months later, if the prisoner did not report to sick call in the interim.
  3. [3]Claimant's counsel refers to the person Claimant saw on July 17 as a health care provider (Kobin Affidavit, ¶17), but the signature clearly indicates "MD" after the name and the notes are those that would be made by a doctor. Defendant's expert identifies the physician as Dr. Benjamin Augustin (Mahl Affirmation, ¶5), but aside from the first initial, which is a "B," I am not able to read the name.
  4. [4]Claimant later recalled this entry and said that it indicated the dates he had been scheduled to be seen by a doctor (EBT Transcript, p. 95). There are no other entries, however.
  5. [5]Other records indicate that the five-year physical blood work was actually performed in January 1998 (Mahl Affirmation, Exhibit A) and the x-ray in March 1998 (Medical Records, p. 26).
  6. [6]Claimant identified this time as April or May of 1997, but he was in Southport only in the spring of 1998.
  7. [7]In fact, Claimant had a grand mal seizure the day after a follow-up colonoscopy that was performed in March 2000 (Medical Records - unnumbered page; Mahl Affirmation, Exhibit D).