New York State Court of Claims

New York State Court of Claims

HOLMES v. STATE OF NEW YORK, #2003-018-252, Claim No. 101728


Claim dismissed after trial based upon claimant's failure to prove prima facie case.

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: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 9, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant sues for damages as a result of inappropriate medical treatment, malpractice and other forms of negligence. Claimant was an inmate at Gouverneur Correctional Facility (Gouverneur) at the time of the incident.

Just prior to trial, on July 24, 2003, claimant sent four subpoenas for the Court's signature. Signed subpoenas were returned to claimant with a cover letter advising him that he was responsible for serving the subpoenas, and that witness and mileage fees would need to be paid in accordance with CPLR 8001(a). Thereafter, the State moved, by Order to Show Cause, to quash two of the subpoenas; one for Nurse Tracey and one for Nurse Smith both employed at Gouverneur at the time of the alleged claim, based upon improper service, as the subpoenas were sent to the witnesses by regular mail. At the time of trial, claimant had been served with the Court's decision the day before.[1]
The two other subpoenaed witnesses, Correction Officer Nardelli and Mr. Logan, a counselor from Gouverneur, were present for trial. However, the State made a motion at that time to quash those two subpoenas as well. Upon inquiry by the Court, claimant admitted he did not have the money to pay the witnesses for their witness fees and mileage and requested the opportunity to proceed as a poor person. Although the Court, by decision[2] of the Hon. Thomas J. McNamara, had allowed a reduction in the filing fee, a review of CPLR 1101 and its various subdivisions indicated to the Court that such a motion had to be filed with an affidavit from claimant on notice to the County Attorney. Also, in inmate cases, the Court must review the Inmate Trust Fund before making a determination about proceeding as a poor person. Given the fact none of these requirements had been or could be met at the time of trial, the claimant's request to proceed as a poor person was denied. The two other subpoenas were quashed for improper service and failure to pay the witness fee.
The case proceeded to trial and claimant testified that on November 7, 1999, he was involved in what he described as an altercation at Gouverneur. He injured his hand and had a scratch on his eyeball at that time. He did not want to report the incident as he did not want to be labeled a "snitch." On November 8, 1999, he went to the facility infirmary to obtain medication. His eye was obviously injured, his hand was swollen, and he saw a nurse. They sent him to an outside hospital the same day. He was told his hand was broken in two places after x-rays were taken; however, no type of bandage, splint or cast was given to him. From there, claimant was taken to a different hospital in Syracuse, New York, for treatment for his eye injury. Upon return to the facility, claimant wanted to return to his housing unit, which he did temporarily, but he was then sent to the infirmary where he remained overnight for observation. The next day he was transferred to the Special Housing Unit, the authorities apparently having learned of what occurred on November 7, 1999. Claimant alleged he continued to complain about his hand and some time around November 15 or 16, 1999, he was scheduled to be taken to the hospital but was not.

Claimant filed a grievance for failure to provide him with appropriate medical treatment, and testified he went seven weeks without treatment; at which time, he wrote to the superintendent. On December 30, 1999, he was seen by a doctor outside of the facility, additional x-rays were taken and it was determined he needed emergency surgery. His hand had continued to be swollen and he had a pinched nerve. On February 22, 2000, he had surgery, and in his view, the results were unsuccessful. He has continued to have problems with his hand and arm claiming a pinched nerve which requires more surgery, and infection of the nerve for which he is taking antibiotics. He complains of inability to sleep and the nerve aggravation going from his hand to shoulder. He is restricted from any heavy lifting, and cannot engage in sports or in any programs. He is therefore, receiving only idle pay as he cannot work. Claimant further stated that outside consultation documents were prepared after he filed this lawsuit, and that many of the documents which were received as part of his ambulatory health record were made after the fact.

On cross-examination, claimant admitted that he was left-handed and it was an injury to his left hand for which he brought the lawsuit. He also agreed his eye had been seriously injured and he had received appropriate and timely treatment for that. On cross-examination, Mr. Holmes was asked about the treatment he initially received for his hand. He had previously testified that he had not received any type of bandage, or assistance, any type of splint for his broken hand for quite a period of time. His ambulatory health record for November 8, 1999, however, reflects that the emergency room at Noble Hospital splinted his hand and that he would need a follow-up within one to two days for orthopedic consultation. Another entry on November 10, 1999, indicates that he had an ace bandage on his left hand which was too tight and the hand was very swollen. He had the bandage loosened and was instructed on how to wrap it in the future. The entry on November 13, 1999, indicates that claimant was complaining of the pain in his left hand and had an emergency sick call while in the Special Housing Unit. He did not have the ace bandage on. At that time, he was instructed to keep the bandage on and re-wrap his hand and if the swelling increased, he needed to elevate his hand and use it as little as possible. On November 15, 1999, claimant was called out for an evaluation of his left hand by a doctor. On November 16, 1999, a splint was applied to his left hand. On November 21, 1999, his ambulatory health record indicated that he was complaining about his left hand and nothing was being done about it. It was noted in the records he was not wearing his splint. During this time there was a consultation pending for him to see an orthopedic surgeon. On November 24, 1999, claimant was seen at an orthopedic clinic, and on November 26, 1999, he was issued medication for the pain in his hand. He was seen again on November 27, 1999, because of his left hand pain and again was issued medication and encouraged to elevate the hand. On December 15, 1999, claimant was again evaluated for pain in his left wrist; however, it was a different area. No edema or deformity was noted. He was seen by a doctor on December 17, 1999, for his left hand; however, the notes in the ambulatory health record are illegible. On December 29, 1999, he was again complaining of pain in his left hand and insisting that nothing had been done. Again, a doctor was asked to review his problem. In January of 2000, he again asked about the orthopedic follow-up and the nurse indicated it would be checked. He requested an appointment with a doctor on February 1, 2000,
and on February 2, 2000, the note indicates that he saw Dr. Mina at an orthopedic clinic. The note on February 2, 2000 indicates, however, that he did not see the doctor as the doctor had to leave, and the appointment was rescheduled. Claimant ultimately had surgery on February 23, 2000, for his fractured hand.
Defendant moved for dismissal of the claim on the basis that the cause of action sounds in medical malpractice and there was no proof of what the standard of care is, and no evidence of any deviation from the applicable standard of care.

A reading of the claim and a review of claimant's testimony requires the Court to find that Mr. Holmes' cause of action is one for medical malpractice. The Court agrees with the State that no evidence of the appropriate standard of care was submitted, nor was there evidence of a deviation of that standard of care by the State of New York. The Court further notes that any testimony coming from the facility nurses, whose subpoenas were quashed, would not suffice as expert opinion on the issues of the treatment claimant received and certainly the success of the surgical intervention. The other witnesses do not appear to be relevant to any medical issues. Based upon the foregoing the Court grants the State's motion to dismiss the claim for failure to prove a prima facie case. The claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.

September 9, 2003
Syracuse, New York

Judge of the Court of Claims

[1]Decision and Order dated August 11, 2003, Fitzpatrick, J., Claim No 101728, Motion No. M-67229, UID #2003-018-242.
[2]Order dated January 27, 2000, McNamara, J., Claim No. 101728.