New York State Court of Claims

New York State Court of Claims

DEVINE v. THE STATE OF NEW YORK, #2003-016-028, Claim No. 104169


Synopsis


Claim alleging improper medical treatment at Woodbourne Correctional Facility was dismissed.

Case Information

UID:
2003-016-028
Claimant(s):
THOMAS DEVINE
Claimant short name:
DEVINE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104169
Motion number(s):

Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Thomas Devine
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph Romani, AAG
Third-party defendant's attorney:

Signature date:
April 8, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is the claim of Thomas Devine, which was tried at Sullivan Correctional Facility, where Mr. Devine testified on his own behalf. Defendant called two Woodbourne Correctional Facility nurses, Margaret Lindsley and Becky Reddish. Devine alleges that he suffered a stroke on February 10, 2001, and asserts that he was not treated properly because he was not seen by a doctor and sent for outside medical treatment until almost three weeks later.

Claimant testified that on February 10, 2001, he had what he characterized as a "stroke," upon which he went to Woodbourne sick call. He described his symptoms as unclear speech, "messed up" eyes and numbness. His "Ambulatory Health Record" for that day indicates that "[inmate complains of left] side of face distorted slightly" and "no [complaint of] any pain or headache." The record for that day continues with a notation that Devine complained of sinus problems and said he had taken medication for such problems prior to his visit to sick call. The record also indicates that an appointment with a doctor was scheduled for claimant for March 1, 2001. See claimant's exhibit 1.

Devine recalled that he returned to sick call on February 12
th and was told he would see a doctor on March 1st. He said that on the 12th, his face looked normal and he felt better; his health record for February 12th states as much. Id. A subsequent medical record for February 28, 2001 contains the following notation: "[inmate complains of] feeling dizzy . . . ambulates gait steady . . states ‘I'm fine'. . . I can go to work." See claimant's exhibit 2.
Claimant testified that on March 1st, he finally saw a doctor, who sent him to Albany Medical Center for treatment, where he was prescribed certain medications in connection with having suffered a stroke. According to claimant, when he returned to Woodbourne, the medication was "changed"; he did not elaborate. He also complained that he was supposed to return for follow-up care at Albany Medical Center, but Woodbourne did not send him.

Devine's Woodbourne medical record for March 1, 2001 indicates, among other things, that he had a "loss of left lateral extraocular muscle movement [with] flattening of [nasolabial] fold . . . suspect he has had a CVA [stroke]."
Id. A "NYSDOCS Request & Report of Consultation" to Albany Medical Center contains the following, prepared by Woodbourne medical personnel: "First came to [nurse's] attention on 2/10/01 when he presented [with] numbness [on the left] side of face & ‘distortion' of [left] side – has waxed & waned since then; has hypertension; also has inability for [left] lateral gaze & has [left] nasolabial fold blunting." See claimant's exhibit 3. The "After Care Instructions" provided from Albany Medical Center state that "[y]our diagnosis today is: stroke." See claimant's exhibit 5.
In short, Devine asserts that defendant was "deliberately indifferent" to his needs in not having him see a doctor until March 1, 2001.

* * *

Both nurses, Margaret Lindsley and Becky Reddish, essentially testified that when claimant came to sick call on the days prior to March 1, 2001, they did not believe that he had suffered a stroke, although they noted that he was scheduled to see a doctor in connection with the symptoms of which he complained.

Margaret Lindsley[1]
testified that she had seen patients with stroke symptoms prior to seeing claimant on February 10, 2001. She described the symptoms of stroke as confusion, agitation, "uptightness," nervousness, slurred speech, and drooping of the face. She said that if such symptoms were present, a doctor would be called immediately; in claimant's case, she did not find it necessary; Lindsley stated that if claimant had suffered a stroke on February 10, 2001, he would have shown "more" symptoms.
Nurse Becky Reddish testified that she was working at Woodbourne on February 12, 2001 and recalled seeing claimant on that date as well as on February 28
th. She also testified that she had seen numerous patients who had suffered strokes and that they generally suffered weakness on one side, and had anxiety and a "sense of doom." According to Reddish, claimant manifested no such symptoms when she saw him.
* * *
In order for Devine to prevail in this case, he would have to present expert testimony that accepted standards of medical care were not met. See, e.g.,
Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814, 681 NYS2d 475 (1998). In this case, even assuming that he suffered a stroke on February 10, 2001, claimant presented no medical expert to testify as to the results of him not being seen by a doctor until March 1, 2001 and to testify that accepted standards of medical care were not met. As to his contention that he was not returned to Albany Medical Center, such facility's After Care Instructions state that claimant was to return if certain symptoms occurred, but he was to "[o]therwise follow up with [the] prison doctor." See claimant's exhibit 5. No testimony was elicited as to any symptoms claimant suffered thereafter. In view of the foregoing, claim no. 104169 is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.

April 8, 2003
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]Despite Lindsley's recollection and the fact that her signature appears on claimant's medical records, claimant maintained that he did not see Nurse Lindsley on February 10th, insisting that he saw a nurse named Martin.