New York State Court of Claims

New York State Court of Claims

FOSTER v. THE STATE OF NEW YORK, #2003-030-025, Claim No. 104472


Pro se inmate's medical malpractice, negligence and ministerial neglect claims dismissed. No prima facie case established.

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:
Third-party defendant's attorney:

Signature date:
August 5, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 Haven."[1]
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. [See, Exhibit 1]. An x-ray was taken on June 30, 1999 at Green Haven. [Ibid]. 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." [Ibid].
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 [
sic] 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, 2001.

Claimant indicated he suffers from pain to this day, and has difficulty walking and sitting.[2]

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 and treatment.
Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied, 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), 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 (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, 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, supra; 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 either.
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
prima facie case, upon which decision was reserved at the time of trial, is hereby granted, and Claim Number 104472 is dismissed in its entirety.
Let Judgment be entered accordingly.

August 5, 2003
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.
[2] In support of his cause of action for medical negligence or ministerial neglect, Claimant offered a copy of the stipulation entered in the class-action lawsuit of Milburn, et al v Coughlin, et al, 79 Civ. 5077 (SDNY 1991) [See, Exhibit 2], which concerned the provision of adequate medical care to inmates in correctional facilities. Milburn has essentially been incorporated into the statutory and regulatory scheme applicable to correctional facilities. See, Correction Law §45(6); 9 NYCRR Part 7651.