Ivory Shire, the Claimant herein, alleges in Claim Number 103299 that the
Defendant's agents negligently failed to maintain his cell in a safe condition
resulting in injury to Claimant when he was bitten by a bat while he was
incarcerated at Green Haven Correctional Facility (hereafter Green Haven).
Trial of the matter was held at Green Haven on April 11, 2003.
testified that on August 29, 2000 he was "resting in...[his] cell on E-Block, 2
Company, at Green Haven" when "a bat entered the
through one of the unscreened windows.
When he tried to get the bat out of the cell, it "attacked" him and bit him on
his back and left arm. Claimant was sent to St. Francis Hospital for rabies
treatment, which included "16 needles" being shot into his body. [See
Claimant's Exhibits "1", "2" and "3"]. He stated that he suffers from insects in
his cell as well, that have infiltrated his belongings, and complains of
nightmares, lack of sleep, and weight loss as a result of being attacked and
bitten by the bat.
Claimant also testified that he still has insects in his
cell, because "whatever they are using to exterminate is not working."
Ambulatory Health Record (hereafter AHR) reflects that he was seen by facility
medical personnel on August 30, 2000, and confirms his treatment for rabies and
visit to St. Francis as well. [Claimant's Exhibits "1" and "2"]. There is some
discrepancy between Claimant's testimony that the incident occurred on August
29, 2000, and the dates contained in the medical records. [See, Claimant's
Exhibits "1", "2"and "3"]. The records indicate he was allegedly bitten on
Saturday, August 26, 2000 and that Claimant reported disposing of the bat at
that time. Treatment commenced on August 29, 2000.
Although his Claim
alleges negligent medical treatment, Claimant did not offer any evidence or
testimony on such a cause of action, except by implication when he stated he is
still suffering from nightmares, lack of sleep and weight loss.
witnesses testified and no other evidence was submitted.
Although the State
has a duty to protect inmates from foreseeable risks of harm, it is not the
insurer of inmate safety. Its duty is to exercise "reasonable care under the
circumstances..." [Basso v Miller
, 40 NY2d 233, 241 (1976)], to protect
against foreseeable risks of harm. Assuming that the State did not create the
dangerous condition, a Claimant must show that the State had actual or
constructive notice of the condition and failed to act reasonably to remedy it.
Gordon v American Museum of Natural History
, 67 NY2d 836,837 (1986).
Creation of a dangerous condition constitutes actual notice. Lewis v
Metropolitan Transp. Auth
., 99 AD2d 246, 249 (1st Dept 1984), affd
64 NY2d 670 (1984).
With respect to constructive notice, any "...defect
must be visible and apparent and it must exist for a sufficient length of time
prior to the accident to permit...[a defendant] to discover and remedy
)." Gordon v American Museum of Natural
, at 837.
Based upon the inconclusive evidence
present here, if there was a dangerous condition created by a failure to have
screens on cell windows, there has been no showing that the State was aware of
the condition and failed to cure it. It is only those foreseeable dangerous
conditions which are not remedied within a reasonable time which may establish
liability on the State's part, [ Gordon v American Museum of Natural
], assuming that proximate cause and actual damages are
proven as well. There was no indication that screens had ever been provided, or
that screens were in disrepair, or that screens would have prevented a bat from
entering the cell. Additionally, some sort of extermination program is in place,
apparently, since Claimant referred to it in his testimony. It is not
necessarily actionable negligence if the program is not completely effective.
Moreover, Claimant did not establish that he was even bitten by a bat,
although certainly the precautionary actions of medical personnel show that his
assertion was taken seriously, and handled by immediate medical treatment.
Whether that treatment was somehow insufficient has not been shown.
"fundamental law that the State has a duty to provide reasonable and adequate
medical care to the inmates of its prisons," including proper diagnosis and
treatment. Rivers v State of New York
, 159 AD2d 788, 789 (3d Dept 1990),
, 76 NY2d 701 (1990).
In a medical malpractice claim, the
Claimant has the burden of proof and must prove (1) a deviation or departure
from accepted practice and (2) evidence that such deviation was the proximate
cause of the injury or other damage. A cause of action is premised in medical
malpractice when it is the medical treatment, or the lack of it, that is in
issue. A Claimant must establish that the medical care giver either did not
possess or did not use reasonable care or best judgment in applying the
knowledge and skill ordinarily possessed by practitioners in the field. The "
‘claimant must [demonstrate]... that the physician deviated from accepted
medical practice and that the alleged deviation proximately caused
his...injuries' (Parker v State of New York
, 242 AD2d 785, 786...)."
Auger v State of New York
, 263 AD2d 929, 931 (3d Dept 1999). Without such
medical proof, no viable claim giving rise to liability on the part of the State
can be sustained. Hale v State of New York
, 53 AD2d 1025 (4th Dept 1976),
, 40 NY2d 804 (1976). A medical expert's testimony is necessary
to establish, at a minimum, the standard of care. Spensieri v Lasky
NY2d 231 (1999).
If a claim can be read to allege simple negligence, or
medical negligence, then the alleged negligent omissions or acts by the State's
employees can be readily determined by a fact finder using common knowledge
without the necessity of expert testimony. Coursen v New York
Hospital-Cornell Med. Center
, 114 AD2d 254, 256 (1st Dept 1986). Similarly,
the State may be found liable for ministerial neglect if its employees fail to
comply with an institution's own administrative procedures and protocols for
dispensing medical care to inmates. Kagan v State of New York
, 221 AD2d
7, 10 (2d Dept 1996).
In this case, only the testimony of the Claimant has
been presented in support of any claim of malpractice. No competent medical
evidence was presented, through a treating physician or an expert witness whose
opinion was based upon the available medical records, to support the allegation
of medical malpractice. There is no medical evidence on any medical issue and
thus no proof that accepted standards of care were not met. Accordingly, any
cause of action for medical malpractice must be dismissed.
from this record there is no indication that the actions of medical care givers
amounted to simple negligence or ministerial neglect. Coursen v New York
Hospital-Cornell Med. Center
; Kagan v State of New
, supra; Cf., Jacaruso v State of New York
, Claim No.
97721, Lebous, J., filed September 9, 2002. To the extent the claim can be read
to assert such theories, any cause of action for negligence or ministerial
neglect is also dismissed.
The Defendant's motion to dismiss for failure to
establish a prima facie
case, upon which decision was reserved at the
time of trial, is hereby granted, and Claim Number 103299 is dismissed in its
Let Judgment be entered accordingly.