Warren Foster, the Claimant herein, alleges in Claim Number 104472 that
Defendant's agents failed to provide him with adequate and timely medical care
when he was an inmate at Green Haven Correctional Facility (hereafter Green
Haven) and otherwise in the custody of the New York State Department of
Correctional Services (hereafter DOCS). Trial of the matter was held at Green
Haven on June 20, 2003.
Claimant testified that on June 27, 1999 he fell while he was playing
basketball in the "west yard at Green
He was seen by medical personnel on that date, given pain medication, and
instructed to return to the facility clinic the following morning. Claimant's
Ambulatory Health Record (hereafter AHR) for that day confirms the visit, as
well as five (5) more visits to the facility clinic prior to his transfer to
Clinton Correctional Facility (hereafter Clinton) on August 3, 1999.
, Exhibit 1]. An x-ray was taken on June 30, 1999 at Green Haven.
The radiologist's report indicates: "Radiographic examination of
the lumbosacral spine shows normal vertebral body alignment and curvature. The
bodies, arches, and pedicles are intact and the intervertebral disc spaces are
well maintained. No compression fractures, bone destruction or significant
arthritic changes are seen. Normal lumbosacral spine."
Upon his arrival at Clinton, Claimant testified he was given "the work up an
inmate's supposed to get when he's an incoming draft", and complained to Clinton
medical personnel of pain in his hip, and his lower back. According to the AHR,
he consulted medical personnel at Clinton on August 3, 4, and 9; October 1, 7,
and 27; and November 8 and 12, 1999. Additionally, an x-ray was taken on
November 18, 1999. Noting that the claimant "fell four months ago, [and had]
persistent pain", the radiologist's report states that " . . . views of the
lumbosacral spine showed irregular trunky ossific/calcific abnormality at the
level of S4 and S5, indicating a healing fracture in view of the patient's
history. There is [
] degenerative changes of the head with increased density and
subchondral sclerosis on one side . . ."
The AHR reflects numerous requests for consultations, and the resulting
consultation reports, throughout calendar year 2000. He appears to have received
physical therapy as well. Sometime in the latter part of that year, Claimant was
transferred to Eastern Correctional Facility (hereafter Eastern). The AHR shows
he saw medical personnel at Eastern on December 14, 2000, and was again referred
for an x-ray. A radiological report of an x-ray taken on December 20, 2000,
indicates that the impression is of "severe degenerative changes, possible early
AVN" and that "no recent or old fractures are obvious. There is a varus
deformity of the right hip. There is marked narrowing of the lateral articular
cartilage with prominent degenerative osteophytes. There are some cystic
changes and minimal flattening associated with the femoral head and evidence of
sclerosis both in the acetabulum and femoral head. Question of early avascular
necrosis associated with severe degenerative change is raised." Thereafter, the
AHR reflects at least one additional consultation with a specialist in February,
Claimant indicated he suffers from pain to this day, and has difficulty walking
No other witnesses testified.
It is "fundamental law that the State has a duty to provide reasonable and
adequate medical care to the inmates of its prisons," including proper diagnosis
Rivers v State of New York
, 159 AD2d 788, 789 (3d Dept 1990), lv
, 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
, 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), lv denied
40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a
minimum, the standard of care. Spensieri v Lasky
, 94 NY2d 231
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
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
, 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, the claim of medical
malpractice must be dismissed.
Additionally, 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 York
, supra; C.f., 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. Whether, and to what degree, earlier
consultations or earlier diagnoses might have alleviated some of the Claimant's
past pain is not discernable on this record. This is not a case where it can be
readily determined without expert testimony what type of care this Claimant
should have received, and whether any alleged delay in receiving treatment -
even in contravention of administrative protocols - caused damage which would
not otherwise have been occasioned by the disease process. In any event, it
does not appear that DOCS failed to follow its protocols. Accordingly, any
claims based upon medical negligence or ministerial neglect are not established
The medical records show that this Claimant obtained regular care, from a
variety of medical personnel, but it does not show that the course of treatment
prescribed based upon the operating diagnoses deviated from some measurable
standard of care, and that any deviation caused this Claimant actionable injury.
It cannot be said that "but for" the Defendant's actions - or its failure to act
- Claimant's current physical condition could have been avoided.
The Defendant's motion to dismiss for failure to establish a
case, upon which decision was reserved at the time of trial,
is hereby granted, and Claim Number 104472 is dismissed in its
Let Judgment be entered accordingly.