WHITEHEAD v. THE STATE OF NEW YORK, #2003-015-583, Claim No. 104726
Court awarded $600.00 in damages for state's 48 hour delay in providing medical
attention to inmate who sustained sprained ankle in fall in prison
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Law Offices of G. Oliver Koppell & AssociatesBy: G. Oliver Koppell, Esquire
Honorable Eliot Spitzer, Attorney General
EsquireAssistant Attorney General
October 9, 2003
See also (multicaptioned
Trial of the instant claim was held in Albany on July 10, 2003. The claim
seeks to recover damages for the State's delay in rendering medical care and
treatment for a fracture of claimant's right ankle allegedly sustained on
February 26, 2001 while incarcerated at Coxsackie Correctional Facility
(Coxsackie) in Greene County
requests damages for pain and suffering sustained during the first three days
following injury and for continuing pain and suffering resulting from the
defendant's failure to treat claimant's injury in a proper, appropriate and
timely manner. The parties stipulated to the receipt in evidence of claimant's
Exhibits 1-24 and defendant's Exhibit A.
Claimant was called as the first witness and testified that on the afternoon of
February 26, 2001 he slipped and fell upon a piece of metal in the facility's
welding shop. He allegedly was unable to walk and reported his injury to the
welding program instructor who allowed claimant to return to his housing unit
assisted by fellow inmates at the end of the scheduled program. Claimant
testified that he reported his injury to correction officer Price prior to going
through a metal detector while returning to his cellblock. He further testified
that he informed correction officers Stevenson [sic], Konsul and Bogison
[sic] of his injury upon arrival at the cellblock. Once in his cell the
claimant noticed that his foot was becoming swollen. According to his
testimony, he complained to correction officer Konsul who contacted the
infirmary and informed the claimant "that the nurse didn't want to see me
because it wasn't a life and death situation." Claimant was given Tylenol for
pain that evening. The claimant alleged that he submitted a sick call slip on
February 27, 2001 but that he was not sent to sick call and in fact was required
to walk to meals and attend the welding program. He stated that he limped and
was in pain while ambulating to meals and to program following his injury.
Claimant alleges that he prepared and submitted another sick call slip
requesting medical attention on the morning of February 28 but again was not
seen by the medical staff and was required to walk to meals and to the welding
program. He reportedly suffered pain in doing so and testified that he was
unable to sleep on both February 27 and February 28. Claimant testified that on
the morning of March 1, 2001 he showed his now discolored and swollen leg to a
correction officer performing a live count of the housing unit and that the
officer returned to claimant's cell with a sergeant and two other correction
officers who escorted claimant to the facility's medical unit.
Claimant averred that the nurse on duty at the medical unit on March 1, 2001
arranged to have his leg X-rayed and that he was later transported to Albany
Medical Center arriving there at approximately 8:30-9:00 a.m. He alleges that
he never spoke to the emergency room physician at the medical center regarding
the manner in which his injury occurred. The witness was informed that his leg
was too swollen to cast and he was given a brace and a narcotic for pain. Upon
his discharge from the medical center claimant was transported to Great Meadow
Correctional Facility (Great Meadow) where he remained in the medical housing
unit for 7 - 14 days before being returned to Coxsackie. Claimant alleges that
while at Great Meadow he suffered pain but was given only Advil and
Upon his return to Coxsackie claimant was issued crutches and on April 4, 2001
his leg was placed in a cast. He believes that he had three or four subsequent
casts during a 4 - 6 month period. Claimant was given a cane after the cast was
removed in the Fall of 2001. He reported limitations on his ability to use his
leg after the cast was removed and that he continued to experience pain.
Approximately one year subsequent to his accident claimant was referred to an
orthopedic surgeon by a Department of Correctional Services physician.
In September, 2002 claimant underwent a surgical procedure to relieve pain
which his surgeon attributed to tarsal tunnel syndrome of the right foot
(see claimant's Exhibits 16, 17, 23). Claimant testified that even
subsequent to this surgical procedure he continued and still continues to
experience pain which limits his ability to stand for more than 10 minutes. He
related that the injury has rendered him unable to engage in athletic activities
or strenuous physical activities and speculated that his injury will make it
difficult for him to return to the work force following his release from
On cross-examination claimant denied that he injured his leg while playing
basketball and asserted that Nurse Albright inserted information to that effect
in his ambulatory health record to cover up for her own negligence in failing to
examine or treat his injured leg in a more expedient manner. He alleged that he
did not speak to the emergency room physician at Albany Medical Center and that
correction officers provided information concerning his injury to Albany
Medical Center personnel upon his arrival. Claimant testified that he submitted
a sick call slip on February 26. According to the claimant the slip was picked
up but he was not allowed sick call on February 27. He admitted that he was
unsure which correction officer he advised of his injury upon return to his cell
on February 26 but confirmed that he informed correction officer Konsul at
approximately 7 a.m. on the morning of February 27 that he had injured
(sprained) his ankle. Correction officer Konsul notified the nurse and advised
claimant that he would not be seen at sick call. Claimant repeated his earlier
assertion on direct examination that he submitted sick call slips on both
February 27 and 28, 2001.
On redirect examination claimant testified that he informed the correction
officers in his unit of his injury both verbally and by having them view the
Claimant's second witness was Richard Cohen, a registered physician's assistant
specializing in orthopedics. The witness offered general testimony regarding
the nature and preferred methods of treating various types of fractures
including open and closed reduction and immobilization of the area to allow
callous formation. The witness testified that he determined from his review of
the claimant's March 1, 2001 X-rays that claimant suffered a minimally displaced
oblique to spiral fracture of the distal fibula. The witness was not provided
with any other X-rays of claimant's injury. He observed that a failure to
evaluate an ankle fracture as soon as possible would generally exacerbate the
On cross-examination the witness acknowledged that he is not licensed to
practice medicine in New York State and that under New York law a physician's
assistant is subject to the indirect supervision of a licensed physician. He
admitted that he had not treated the claimant in this case but had conducted a
review of claimant's medical records prior to testifying. The witness averred
that a spiral fracture is usually caused by a twisting action to the bone. He
resisted defense counsel's efforts to ascribe claimant's injury to playing
The witness's redirect examination was unremarkable and upon its conclusion
the claimant rested.
The defendant moved to dismiss the claim for claimant's failure to prove a
prima facie case of negligence, specifically arguing that claimant failed to
offer competent proof of unreasonable delay in treating claimant and failed to
offer medical proof that the delay caused any injury that would not have
otherwise been caused by the fracture.
The Court reserved on the motion and now denies it.
Defendant's first witness was Joy Albright, a registered nurse employed in the
medical unit at Coxsackie Correctional Facility. Nurse Albright provided
information regarding her education and experience and indicated that she was
employed at Coxsackie during February 2001. She alleged that she did not recall
seeing the claimant at sick call on March 1, 2001 except from her review of
facility records including defendant's Exhibit A which she identified as
claimant's ambulatory health record for November 4, 2000 along with four entries
for March 1, 2001. Nurse Albright confirmed from her review of Exhibit A that
she examined the claimant during morning sick call on March 1, 2001 at which
time she noted "decreased range of motion in his right foot, edema of the right
foot and upper right leg" (Transcript p. 117). The document also relates that
claimant "states he fell playing basketball." She identified claimant's Exhibit
12 as a memorandum dated March 1, 2001 in which the witness states that she
received a telephone call from CO Carroll on Tuesday (February 27) relating that
claimant had complained that he had injured his foot the previous evening and
was refused medical care. The memorandum indicates that Nurse Albright had
worked from 6:00 a.m. to 10:00 p.m. that day (Monday, February 26) and received
no such call concerning the claimant. She advised the CO to have claimant sign
up for sick call on Wednesday morning. She alleges that claimant did not sign
up for or appear at sick call on Wednesday. Later that afternoon she received
another call regarding claimant's injury and reportedly told the officer to keep
claimant in his cell and she would place his name on the sick call list for the
next morning. She testified that her first notification of Whitehead's injury
occurred on February 27. She testified further that she had never refused
treatment to an inmate who put in a sick call request.
On cross-examination the witness repeated her earlier assertion that she had no
independent recollection of the subject events occurring in February and March
2001. She identified claimant's Exhibit 19 as a statement regarding sick call
procedures which inmates entering Coxsackie in 2000 would have been required to
sign. She acknowledged that the exhibit defined the term "emergency" and
included sprains and fractures as examples of medical emergencies. In apparent
contradiction of her direct testimony she was asked the following questions and
gave the following responses:
Q. So if you learned that an inmate had suffered a sprain or a fracture, you
would consider that an emergency?
A. If I received that information, absolutely.
Q. So if you received the information that someone had severely injured their
leg, what conclusion would you reach as to what the nature of that injury
A. Without seeing it, I wouldn't know if it was a severe injury. I was told
Q. So notwithstanding the fact that this says that sprains or fractures are
emergencies, if you learned that someone severely injured their leg, you
wouldn't consider that an emergency?
A. I don't believe I said that.
Q. Well, what's the fact? Would you consider it an emergency?
A. If I was informed that someone severely injured their leg,
Q. And under the procedures of the Correctional Facility, if it was an
emergency would the inmate be asked to wait for sick call?
A. I'm sorry, I don't understand.
Q. Okay. If you learned that there was an emergency condition involving an
inmate, would you say that that inmate should wait for sick call to be
A. An emergency situation, no, sir.
Q. You would say they'd be seen right away, is that correct?
A. Quick as they could get down, yes, sir.
After reviewing claimant's Exhibit 1, a housing unit log book entry by C.O.
Konsul indicating that he reported claimant's sprained ankle to Nurse Albright
at 7:35 a.m. on the morning of February 27, 2001, the witness maintained that
she had no recollection of the relevant events except that which appears in the
memorandum received as Exhibit 12. She repeated her earlier testimony that she
did not recall receiving a telephone call from a correction officer reporting
claimant's sprained ankle on Monday, February 26. Albright acknowledged that
the Inmate Orientation Handbook received as Exhibit 18 indicates that emergency
medical services are provided on a 24-hour basis, that a nurse is on duty 24
hours a day and a doctor is on call 24 hours a day, and that emergency care is
to be rendered promptly. The handbook further states that if an inmate feels
that he has a medical emergency he should advise his division C.O. or shop
On redirect examination the witness confirmed that the Coxsackie policy and
procedure manual (claimant's Exhibit 20) was dated August 24, 2001. She was
unsure whether the same policies regarding emergencies set forth in Exhibit 20
were in effect in February and March 2001. She did state the following,
however, in response to a question from defense counsel:
Q. So if you had been informed on the morning of Tuesday, February 27th that
Inmate Whitehead had sprained his ankle, what would have been – what would
have been your procedure?
A. At that time, if he was having – if he had a sprained ankle with pain
or couldn't ambulate, he would have been – they would have been told to
bring him down to sick call.
Q. That would have been the proper thing to do?
A. That would have been my judgment call, sir.
Defendant's second and final witness was Bruce LaVallee who testified that he
had been employed as a vocational instructor (welding) at Coxsackie since 1990.
The witness recognized the claimant and recalled that claimant was in his
welding class on the afternoon of February 26, 2001. He did not recall,
however, any incident in which the claimant fell and injured himself while in
the shop that day and testified that had such an incident been reported to him
he would have called for medical assistance and prepared an accident report.
The witness further testified that the shop was closed on February 27, 2001
because he was changing an air system regulator. He believed that the shop was
also closed on February 28, 2001 although he could not recall the reason.
LaVallee stated that he had received training as an EMT, first responder and
first aid instructor and would have provided assistance to the claimant had he
been informed of claimant's injury.
On cross-examination LaVallee reported that he noticed claimant's absence from
the class a few days after the incident. When he inquired regarding the absence
he was told that claimant had broken his leg. He later learned that claimant
had alleged that a slip and fall occurred in the welding shop. Mr. LaVallee
again denied any knowledge of the event and repeated his earlier testimony that
if an accident were reported to him he would have prepared an accident
Claimant was called as a rebuttal witness and testified that when a nurse makes
her nightly rounds in the housing unit she walks past prisoners unless she has
medication to dispense or a particular inmate to see. He alleged that at one
point in time following his injury he removed his shoe to show his foot to a
correction officer. He repeated his earlier testimony that a CO contacted the
nurse who refused to see claimant. The CO indicated he would report his contact
with Nurse Albright in the logbook.
The witness refuted Bruce LaVallee's testimony that there was no welding
program on either February 27 or 28. Claimant stated that he attended the
program on both days and that LaVallee was aware that he had been injured. On
cross-examination he alleged that both Nurse Albright's testimony and that of
instructor LaVallee were concocted to cover up their denial of prompt medical
After a brief closing statement from each attorney the trial was
It is well established that "the State has a duty to provide reasonable and
adequate medical care to the inmates of its prisons (Rivers v State of New
York, 159 AD2d 788, lv denied 76 NY2d 701)" (Auger v State of New
York, 263 AD2d 929). Medical care must be provided "without undue delay"
(Kagan v State of New York, 221 AD2d 7, 11) and in order to recover for
damages stemming from delay a claimant must prove that the delay in diagnosis
and/or treatment was a proximate cause of his or her injuries. The Appellate
Division, Third Department has found that a claimant must provide evidence "that
there was a 'substantial possibility' that the [complained of loss] was
caused by the delay and that the State's negligence deprived claimant of
an appreciable chance of avoiding the loss suffered (see, Kimball v
Scors, 59 AD2d 984, 985, lv denied 43 NY2d 648; see
also, Kennedy v Peninsula Hosp. Ctr., 135 AD2d 788, 792;
Mortensen v Memorial Hosp., 105 AD2d 151, 157-158)" (Brown v State of
New York, 192 AD2d 936, 938). The Court in Brown at 938 further
addressed the issue of proximate cause by noting the following observation of
the Court of Appeals in Toth v Community Hosp., 22 NY2d 255, 261:
The issue of causation in medicine is always difficult but, when it involves
the effect of a failure to follow a certain course of treatment, the problem is
presented in its most extreme form. We can then only deal in probabilities
since it can never be known with certainty whether a different course of
treatment would have avoided the adverse consequences.
In the instant case neither claimant's medical records received in evidence nor
the trial testimony of Mr. Cohen demonstrate that any injury resulted from a
delay in treating claimant's ankle fracture. In fact to the extent that
claimant alleges that he was required to undergo surgery as a result of the
delay the unsworn letter of claimant's orthopedic surgeon dated September 4,
2002 (see, claimant's Exhibit 23) refutes that claim. In the letter to
claimant Dr. Mitchell Rubinovich stated:
In response to your questions regarding Tarsal Tunnel Syndrome, I would have to
say that people get Tarsal Tunnel usually on the basis of either Chronic
Scarring or Overuse of the Foot in certain ways. Fractures of the fibula are
unlikely to cause Tarsal Tunnel Syndrome, as the fibula is on the outer side of
the foot and the tarsal tunnel is on the inside part of the foot. It is
unlikely that delay in treatment of a sprain or fracture would contribute to the
development of Tarsal Syndrome.
Furthermore while Dr. Rubinovich's unsworn letters dated October 31, 2002 and
January 30, 2003 (claimant's Exhibit 23) suggest several alternative possible
diagnoses of claimant's ongoing foot and ankle complaints following his tarsal
tunnel surgery nothing in these letters prove or even suggest that the condition
is or might be attributable to a delay in rendering initial treatment.
The record is devoid of medical evidence establishing that the complained of
delay was a proximate cause of any injury or damage and claimant's own
assertions in this regard, to the extent such assertions were made, are
insufficient to support a malpractice claim. Recovery of damages on the medical
malpractice aspect of this claim is, therefore, denied.
The State, however, may be found liable for damages arising from ministerial
neglect where the proof shows that employees of a correctional facility
violated an administrative protocol in denying an inmate emergency medical
attention where the complained of injury or condition warranted such attention
(see, Kagan v State of New York, supra, 221 AD2d 7).
Although the mechanism of claimant's injury is disputed, i.e., a slip and fall
in the facility's welding shop versus an injury sustained during a basketball
game, claimant does not seek a determination of liability against the State for
having caused the injury. Instead, claimant seeks damages for the failure to
promptly treat his injury. The defendant has not submitted proof disputing
claimant's assertion that he sustained an ankle injury on February 26, 2001.
The record, including claimant's Exhibit 1, demonstrates that claimant reported
a sprained ankle to CO Konsul at least as early as 7:35 a.m. on February 27,
2001 and that Konsul reported that information to Nurse Albright in the medical
unit. Institutional records apparently generated by a grievance filed by
claimant further demonstrate that claimant's injury was reported to the medical
staff a second time on February 27, 2001 by CO Stevens (claimant's Exhibit 4)
and reported a third time by CO Carroll on February 28, 2001 (claimant's Exhibit
5) who placed claimant on medical keeplock at the direction of Nurse Albright.
Claimant, however, was not seen by Nurse Albright until the morning of March 1,
2001. Claimant alleged at trial that on that date he was brought to the
facility's medical unit by a sergeant and two correction officers on an emergent
basis (Transcript p. 21-22). Interestingly, Nurse Albright officially reported
the visit as "AM Sick Call" rather than a medical emergency on an inmate injury
report (see, claimant's Exhibit 11).
At trial Nurse Albright testified concerning the sick call procedures in effect
at Coxsackie at the time of this incident. She related that an inmate obtains
medical attention by preparing and submitting a sick call slip during the
evening hours which results in the patient being scheduled for sick call the
following morning. On direct examination she testified that had she received
information from a correction officer that an inmate was complaining of a
sprained ankle it was within her discretion to direct the inmate to submit a
sick call slip for the following day and that she would not have considered such
a condition to be an emergency (see, Transcript p. 111). On
cross-examination, however, she acknowledged that according to the sick call
procedure statement which inmates entering Coxsackie in the year 2000 were
required to sign a sprain or fracture were included among other examples of
conditions listed as medical emergencies (see, Transcript p.127). Nurse
Albright was asked the following question and gave the following answer (at p.
Q. So if you learned that an inmate had suffered a sprain or a fracture, you
would consider that an emergency?
A. If I received that information, absolutely.
The Court is satisfied from both claimant's own testimony and the housing
logbook entry of CO Konsul (claimant's Exhibit 1) that Nurse Albright was
informed of claimant's possible ankle sprain no later than 7:35 a.m. on Tuesday,
February 27, 2001 and that despite the facility's policy of treating sprains on
an emergent basis claimant did not receive medical attention until the morning
of March 1, 2001. This 48 hour delay in providing medical attention is found by
the Court to have been unreasonable under the circumstances and claimant is
awarded the sum of $600.00 as compensation for his past pain and suffering. No
award is made for future pain and suffering since any such recovery is dependent
upon a demonstration that claimant sustained some continuing injury as a result
of the delay. As noted above, claimant wholly failed to prove any ongoing
injury proximately related to a delay in treatment at trial. Claimant shall
also recover the filing fee paid pursuant to Court of Claims Act §
The Clerk shall enter judgment in accord with this decision.
October 9, 2003
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
.The instant claim further asserted a cause of
action based upon an alleged violation of the 8th and 14th Amendments to the
United States Constitution. This cause of action was not addressed at trial and
is deemed abandoned. Moreover, this Court lacks subject matter jurisdiction to
hear and decide violations of the United States Constitution (Brown v State
of New York
, 89 NY2d 172; Matter of Thomas v New York Temporary State
Comm. on Regulation of Lobbying
, 83 AD2d 723).