Claimant testified that on August 12, 1998, while in the Special Housing Unit
(hereinafter referred to as SHU) at Marcy, he tripped over the door jamb
between the recreation area and his cell and landed on his left knee. When he
got up, he was in severe pain and his cell mate assisted him to the bed. His
cell mate pounded on the door to get the Correction Officer's (hereinafter
referred to as C.O.) attention.
Some time thereafter, no later than 10:30 a.m., a C.O., whose name is unknown to
claimant, responded, and claimant requested medical attention. The C.O. said he
would return but never did. Another C.O. came to the cell and said she would
send medical personnel, but no one came. It was not until 8:00 or 9:00 p.m.
that claimant saw a nurse. He recalled hearing the slots on the doors opening
and closing and his cell mate calling out to Nurse Boutet. She came to the
cell, opened the slot, and asked to see claimant's injured
Shortly thereafter, a C.O. brought
claimant an ice bag.
Claimant said he continued to bang on the cell door because he was still in
pain and wanted medical attention. At approximately midnight, Nurse LaLonde and
a C.O. arrived at claimant's cell. The nurse observed claimant's knee through
the window near the top of the door and through the slot. The nurse did not
provide any assistance to claimant and filed a misbehavior
against him for falsely reporting that he needed emergency medical care.
Claimant was found not guilty. Claimant, in turn, filed a
for lack of adequate medical
attention. This grievance was denied. The appeal, decided on October 1, 1998
by the Superintendent, was also denied after claimant had received additional
Claimant testified that during that night (August 12 - 13, 1998), he banged on
the door of his cell because of the pain in his knee and was told by the guard
he was just wasting his time. He eventually went to sleep.
Early on August 13, 1998, after claimant had submitted a sick call request,
Nurse Solli went to claimant's cell. Nurse Solli opened the slot in the cell
door, looked at his knee, then slammed the slot shut and ran off yelling. She
filed two misbehavior reports
against claimant alleging in one that he exposed himself to her. After the
hearings, based upon a videotape of Nurse Solli's visit to claimant, he was
again found not guilty. Claimant filed two more
and sent letters to the medical
staff. These grievances were ultimately denied by both the Inmate Grievance
Resolution Committee and the Superintendent.
Claimant testified that he submitted a sick call slip every day until he was
taken to the hospital but received no response to his requests. On August 31,
1998, claimant sent a letter to the medical staff requesting attention for his
knee. On September 2, 1998, Nurse Tayler examined claimant in the medical cell
on S-block. Unlike the prior exams, Nurse Tayler checked claimant's range of
motion and his ability to use his left knee. Claimant testified he was taken
to a local hospital for x-rays on September
Claimant had a fractured medial tibial plateau. As a result, claimant was
issued a velcro-strap leg brace. Nurse Tayler saw claimant a few more times for
his knee problems.
Claimant testified he was taken to State University Hospital in Syracuse on two
occasions; on September 25, 1998 he gave a
but due to a mix-up in paperwork, not much else transpired. On October 19,
1998, claimant was examined at State University Hospital by Dr. James Nieman.
Claimant stated he was given three prescriptions at that time; one for crutches,
one for a velcro leg brace and one for medication. According to claimant, the
only prescription honored by Marcy was for the leg brace.
However, a review of claimant's ambulatory health record showed that claimant
was examined by Dr. Nieman on September 25, 1998, and the later appointment on
October 19, 1998, was cancelled due to a failure to bring x-rays. Furthermore,
Dr. Nieman only wrote two prescriptions, one for crutches and the second for a
On October 26, 1998, claimant saw Dr. Vadlamudi at Marcy for the first time
regarding his knee. Dr. Vadlamudi's notes from that
indicate that he and Dr. Nieman agreed claimant did not require crutches, but if
claimant's pain persisted, he would be allowed bed rest. Claimant had a second
set of x-rays on October 9, 1998, which showed the fracture healing. Sporadic
complaints of knee pain can be found in claimant's medical records through
November 3, 1998. The Court notes no entries regarding knee problems in those
records between August 14, 1998 and September 2, 1998.
Claimant submitted various documents at trial, including Department of
Correctional Services and facility directives, which address inmates' rights to
medical care and the procedure for inmates to obtain such
The procedures for medical care for an inmate housed in the SHU are set forth in
a separate directive from the one used for the general
The Court notes that requests
by inmates in the SHU are required to be recorded and to be maintained for
future reference. No such lists or logs were offered by claimant. Claimant
acknowledged on cross-examination that he did not put in sick call slips between
August 15, 1998 and September 1, 1998. On redirect examination, however,
claimant said he did submit them.
No other witnesses were called by claimant on his first cause of action, and
the State moved for dismissal for failure to prove his case. The Court reserved
decision on the motion.
Claimant proceeded with his case on a theory of negligence, producing no expert
testimony regarding the alleged improper medical care. Whether or not expert
proof is required turns on whether the claim is one for medical malpractice and
whether the standard of conduct is within the knowledge of the fact finder. The
Court of Appeals formulated a general test to determine whether a claim sounds
in malpractice or common law negligence in
Bleiler v Bodnar,
65 NY2d 65. In deciding whether or not a nurse could
commit medical malpractice, the Court said, "Obviously, not every negligent act
of a nurse would be medical malpractice, but a negligent act or omission by a
nurse that constitutes medical treatment or bears a substantial relationship
to the rendition of medical treatment
by a licensed physician constitutes
malpractice" (Bleiler v Bodnar
at 72) (emphasis added). The Court
further stated that "[t]he conclusion is no different with respect to the
emergency room nurse, functioning in that role as an integral part of the
process of rendering medical treatment to a patient" (Bleiler v Bodnar
72). Clearly, claimant's position that the nurses who saw him from August 12
through September 3, 1998, failed to provide proper medical treatment or failed
to properly examine his knee are substantially related to the rendition of
medical care. Therefore, the cause of action is for medical malpractice
(cf., Zellar v Tompkins Community Hosp.,
124 AD2d 287).
The Court must now decide if expert testimony was required to support the
medical malpractice alleged by claimant. The proof established that claimant's
knee was viewed through a slot in the cell door on the first three visits by the
nurses. He was not physically examined until September 2, 1998, when Nurse
Tayler saw him and sent him for x-rays. When seen in August, claimant was given
ice and ibuprofen and told to elevate his leg. The sufficiency of this
treatment and the timing of requesting the x-rays have not been shown to deviate
from the applicable standard of care. The Court is not in a position to make
such a determination without evidence of the standard of care a nurse or doctor
would be required to meet. Therefore, the State's motion to dismiss is GRANTED
for claimant's medical malpractice cause of action.
Claimant also argues that his requests for sick call, submitted daily to no
avail, in violation of the facility or Department of Correctional Services
directives would constitute ordinary negligence or ministerial negligence
Schneider v Kings Highway Hosp. Center,
67 NY2d 743; Kagan v State of
221 AD2d 7). Ministerial negligence involves a failure to fulfill
a duty to perform some non-discretionary action (see,
Public Officers Law
§73(1)[d]). Clearly, the State has a duty to provide persons in its
custody with appropriate medical care (Matter of Farace v State of New York,
176 AD2d 1228). Claimant established that certain non-discretionary
directives exist which describe when and how medical care services should be
provided to inmates in the Special Housing
However, claimant failed to prove
that the State breached its duty to claimant or failed to comply with the
directives for providing medical services. Claimant's recollection of his
requests for sick call was shown to be inaccurate and the Court does not credit
his testimony on this point. The evidence establishes that claimant was seen by
a nurse each time a documented request for medical services was made. Whether
or not the nurses' medical services were appropriate, requires proof from a
medical expert of what is the standard of care - proof which was not presented.
Claimant's argument that the failure to respond to his daily sick call requests
constitutes ordinary negligence also fails (
Schneider v Kings Highway Hosp. Center,
67 NY2d 743). The documentary
evidence conflicts with claimant's recollection of these events; therefore,
claimant has failed to establish ordinary negligence.
Accordingly, claimant's cause of action for ordinary negligence or ministerial
negligence must also be DISMISSED.
Claimant's second cause of action is for assault and battery which he alleges
was perpetrated by a C.O. on September 21, 1998. He also claims that other
correction officers in the vicinity failed to stop the attack.
Claimant testified that on September 21, 1998, he was notified that he had a
legal visit which required him to be taken from the SHU to another building.
Before being taken from his cell, claimant was handcuffed through the door slot
and a chain was wrapped around his waist, to which the handcuffs were attached.
He was searched and leg shackles were put on. He recalled that he had his leg
brace on that day.
From his cell, he was escorted by officers to a school bus. He carried a net
bag with his legal papers and perhaps a book in it. Claimant said he had
restricted leg movement from the restraints. When he came to the door of the
bus, he had to climb two to three steps. The driver was C.O. Restle who told
claimant he could not get on the bus until he put the medallion he was wearing
inside his shirt. Claimant said the handcuffs and waist chain prevented him
from reaching high enough to comply with C.O. Restle's order. Additionally, he
had the net bag in his hands. He started up the bus steps and C.O. Restle
threatened him, hit him, put him in a yoke hold, and took him to the floor of
the bus. Claimant recalled some other correction officers screaming at
Claimant was removed from the bus and taken back to S-block where he was
examined by Nurse Tayler. Pictures were taken which show red marks on
Claimant submitted a grievance as a result of the
claimant said he exchanged words with C.O. Restle before the assault, telling
the C.O. he could not put his chain inside his shirt, he needed the cuffs
removed to do so. Claimant did not recall any directive from C.O. Restle
regarding buttoning his shirt.
The State called Correction Officers Charles Restle, Paul Cambridge, Thomas
Vanno, and Rickie Weber on its direct case in defense of the second cause of
action. C.O. Restle was the bus driver on September 21, 1998, and Correction
Officers Cambridge and Vanno were on board the bus. The testimony of these three
officers was consistent and reflected their recollection of the incident with
claimant as follows: As claimant was about to enter the bus, C.O. Restle gave
the claimant a direct order to button his shirt and tuck in his medallion.
After the second or third direct order, claimant started up the stairs of the
bus and said, "You're p_ _ _ _ _ g me off, old man. Take this." Claimant moved
toward C.O. Restle who was starting to rise from the driver's seat. Restle
pushed claimant away, his hands about chest level, and claimant fell to the bus
floor where Officer Cambridge restrained him. Sergeants Weber and Seresky were
nearby and ordered claimant removed from the bus and returned to S-block where
he was examined by Nurse Tayler. It was claimant's contention that he could not
reach the buttons and/or medallion because of the handcuffs and waist chain.
Both Correction Officers Cambridge and Vanno were asked about the length of the
chain available to claimant for hand movement up and down. They both said that
claimant could reach his buttons; C.O. Vanno said the claimant could reach from
his mouth to his zipper.
Sgt. Weber did not see what happened but was there when claimant was removed
from the bus. He followed claimant back to S-block and testified that claimant
was not wearing leg restraints as claimant had stated. Introduced through this
witness were a video tape and still photographs from the video showing claimant
returning to S-block from the bus without leg restraints. When asked on
cross-examination if the restraints had been removed on the bus, the witness
said that leg restraints were not required; they could be omitted for things
such as medical reasons. On re-direct examination, the video was shown of
claimant leaving S-block, before the incident, also without leg restraints.
Frequently with an inmate's claim of excessive force or assault and battery by
a correction officer, the credibility of the witnesses becomes the deciding
Davis v State of New York,
203 AD2d 234). It is the duty of the Court as
the fact finder to assess each witness's credibility (Amend v Hurley,
NY 587, 594). Claimant's testimony contained several misstatements; although
some were minor, others were not. As a result, the Court finds claimant's
testimony not credible. Since claimant has the burden of proof and his
testimony was the only proof presented on his direct case, his second cause of
action must be DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.