New York State Court of Claims

New York State Court of Claims

WATTS v. THE STATE OF NEW YORK, #2003-031-506, Claim No. 95079


Claimant's assignment to an upper bank was not the result of either negligence or medical malpractice. Claim dismissed.

Case Information

DWAIN WATTS Caption amended sua sponte to show the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended sua sponte to show the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 5, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Dwain Watts, filed claim number 95079 on November 6, 1996, alleging the State was negligent for failing to assign him to a lower bunk, in light of his alleged heart condition. I held the trial in this matter on November 7, 2002.

Claimant testified that, on September 25, 1995, while at Collins Correctional Facility ("Collins"), he fell off the top bunk in his dormitory cubicle ("cube") when, experiencing pain in his chest, he attempted to get out of bed and get help. The diagram of the cube set-up in Exhibit D was helpful in illustrating the accident. It appears he was assigned the top bunk which was placed against the wall in a corner of the cube. There were approximately six or seven feet between each set of bunk beds. Claimant stated that the bunk beds are as tall as he is, approximately 6'3" tall.

Claimant testified that he was lying in the bunk, his left side toward the wall, when he felt a pain in his chest. He attempted to exit the bunk at the end, where his locker had been placed, his intent having been to step from the bed to the locker, and then to the floor. He felt dizzy, misjudged the locker placement, and fell to the floor, hitting the side of the locker on his way down.

Claimant testified he sustained two fractured ribs and a laceration on his side as a result of this fall, and that he was in the facility infirmary for "30 to 45" days following the incident. He stated that a butterfly bandage was applied to the laceration and his rib cage was wrapped. Exhibits 4 and 5 are pictures of Claimant's injuries taken on October 1, 1995. The cut is obvious, even with the poor quality of the copies of the Polaroid photographs. The laceration runs from Claimant's pectoral area to just above his waist. At trial, Claimant stated that the wound had healed "pretty well," but he still has a "slight scar."

Claimant stated that he was being treated for chest pain at the time of his fall and had been prescribed nitroglycerin pills and patches. He testified that he had a history of heart problems, including a heart murmur and a previous heart attack. The medical staff at both Gowanda Correctional Facility ("Gowanda") and Collins had echocardiograms ("echos")
done. Exhibit 1 is a Department of Correctional Services' ("DOCS") Patient Referral Form dated September 29, 1995 from Collins, indicating that Claimant was being referred for treatment outside the facility due to his abnormal EKGs since March 1995, as well as certain cardiac isoenzyme tests performed on September 27, 28, and 29, 1995, which showed slight abnormalities. In addition, Claimant was experiencing occasional chest pain that was relieved by "NTG. 3L."
Claimant submitted Exhibit 2, an Inmate Grievance Program Central Office Review Committee determination dated August 16, 1995. This apparently related to a grievance filed by a different and unidentified inmate on June 28, 1995, at Altona Correctional Facility. The grievance challenged the safety of double bunks, specifically requesting that "edges on all beds be sanded and capped," and "that a ladder be placed on bunks for the purpose of getting up and down on beds." The Central Office Review Committee determined that chairs and lockers in the cubes, positioned next to the bunk beds, were a safe way to climb in and out of the top bunks for most persons. "Unless there are medical reasons that those persons cannot be assigned to the top bunks, inmate will be so assigned." Claimant stated he possessed a "Restriction Form" that said he was not to be placed in a top bunk for medical reasons, that is, his heart condition. However, he lost the form during one of his transfers and was counting on the form being kept in his prison files.

Despite the absence of the Restriction Form, Claimant stated he informed the head correction officer of his dorm at Collins that he had a problem being assigned the top bunk. He asked the officer to confirm with the Collins infirmary that he was on medication for chest pains and that he needed a bottom bunk for medical reasons. The officer ordered him to go to the top bunk, despite Claimant's protests.

Claimant testified that he never had a double bunk assignment until he was sent to Collins. Even then, he was given a single bunk when he first arrived. He had been assigned the top bunk for 30 days prior to the fall on September 25, 1995. After the incident, no heart medications were prescribed for Claimant. DOCS transferred Claimant from Collins to Cayuga Correctional Facility ("Cayuga") two years later, in September 1997. Claimant was double bunked at Cayuga and again assigned to the top bunk. Claimant was released from DOCS' custody in January 1998.

The State called Dr. John Cetin, the full-time medical director at Collins since 1996. Dr. Cetin testified about the extent of Claimant's injuries and the facility's attempts to verify whether or not Claimant had heart disease.

After Claimant fell from the top bunk, he was sent to Tri-County Memorial Hospital ("hospital"). At the hospital, Claimant's chief complaint was that he had difficulty breathing. The emergency department chart noted an abrasion on the right side of Claimant's chest. The examining nurse called the wound a "superfical [sic] laceration . . . 4cm x 6cm" in size (Exh. C). He was discharged from the hospital on September 26, 1995 at 1:55 a.m. (Exh. C) and admitted to the Collins' infirmary that day at 2:20 a.m. (Exh. D, p. 27). The Admission and Discharge Summary in Claimant's Medical Record indicates the Collins infirmary discharged Claimant on September 29, 1995 and scheduled a "Cardiology consult A.S.A.P." (Exh. D, p. 68).

I note that the report of Claimant's x-rays of the neck, back and pelvis were normal; no fractures or dislocations were noted (Exh. C). Nowhere in the hospital records or in Claimant's Medical Record is there confirmation or support for Claimant's allegation that he fractured two ribs. In fact, Claimant was discharged from the infirmary after only three days, not the 30 to 45 days to which he testified on direct examination. Further, it appears he left the infirmary at his own request, in contravention of medical advice (Exh. D, p. 85). He was given Tylenol for pain (
id. p. 70).
Claimant's Medical Record references a March 1995 order of "nitro patch." Claimant was given a box of 30 patches and had used two by September 26, 1995 (Exh. D, p. 27). He also had nitroglycerin tablets (
id., p. 32). Electrocardiograms ("EKG"s) were administered in 1995, specifically, on March 6, 1995,[1] that showed some visible abnormalities, according to Dr. Cetin's testimony (Exh. D, pp. 52-55). Claimant refused additional EKGs on March 15, 1995 and March 28, 1995 (id., pp. 94, 93).
Further, it appears that Claimant signed up for sick call at various times between his March 1995 EKG and the accident. On April 17 and 27, 1995 and May 5, 1995, he was a "no show." On May 9, 1995 and on July 18 and 21, 1995, Claimant attended scheduled sick calls, but, since his refusal of the EKG on March 28, 1995, no complaints of chest pains were noted (Exh. D, pp. 28 - 30). Dr. Cetin testified that an inmate could request a lower bunk assignment for medical reasons anytime at sick call. The inmate would then be evaluated by the facility doctor and the resulting decision noted in the medical records. Here, there is no reference to any request for lower bunk assignment.

The facility referred Claimant to Erie County Medical Center ("ECMC") for a cardiology consultation. ECMC saw Claimant on October 12, 1995, and recommended that an echo and stress test be performed and scheduled a follow-up appointment for December 7, 1995 (
id., p. 66). The stress test results were "within normal limits," (id., p. 38) and the echo was also normal (id., p. 41). These tests were performed at ECMC on December 22, 1995. Dr. Cetin opined that this combination of tests was more accurate than the EKG tests performed earlier. Therefore, the fact that the March 1995 EKG test showed a minor abnormality, indicated only that further evaluation was needed. It was not conclusive proof that Claimant had heart disease. Further, he stated that nitroglycerin would be administered until such time as Claimant's condition could be verified; the fact that it was administered would not be conclusive medical evidence that Claimant had heart disease. Importantly, according to Exhibit B, coronary disease, per se, would not require the facility to assign Claimant a lower bunk.
The State produced Correction Officer Gary Oehler to explain how double bunking assignments are made. Officer Oehler has been a DOCS employee since July 1983. During the five years preceding this trial, he had been in charge of movement and control at Collins.

Inmates coming into Collins receive an initial medical interview during reception. At that point, medical personnel may indicate that an inmate requires a bottom bunk for medical reasons. If no medical reasons are indicated, he is assigned a top bunk. Officer Oehler corroborated Dr. Cetin's testimony that, once in the population, an inmate can tell a correction officer that he needs a bottom bunk. The officer then refers the inmate to the medical staff by having the inmate sign up for sick call. When out at sick call, an inmate need only make a request and the medical staff evaluates him to determine if restriction to a lower bunk is necessary.

DOCS policy for lower bunk assignment is clear, only inmates that meet certain defined clinical criteria may be restricted to a lower bunk. Heart disease is not on the list of clinical disorders (Exh. B).[2]

It appears that there were times during Claimant's incarceration that he was assigned a lower bunk (Exh. A) but that was due to the natural progression of internal inmate movement; incoming inmates were assigned the top bunk and inmates who had resided there longer moved to lower bunks.

The following facts are undisputed: Facility personnel prescribed nitroglycerin patches and/or pills for Claimant. Claimant had an EKG which showed slight abnormalities. The facility assigned him a top bunk. Claimant did not suffer from any disease or disability listed in the State's Double Bunking Policy (Exh. B). The only means of getting on and off Claimant's top bunk was to use his locker, which was placed at the foot of his bunk bed as a step. Claimant fell when he attempted to exit the top bunk on September 25, 1995 and sustained injuries.

Claimant's proposed theories of liability include both medical malpractice and ordinary negligence. The theory of simple negligence applies to alleged acts or omissions readily determinable by the trier of fact based on common knowledge (
Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254). Where, as in the case before me, a claimant places his medical treatment, or lack thereof, in issue, then the theory of the case is more appropriately medical malpractice (Hale v State of New York, 53 AD2d 1025, lv denied, 40 NY2d 804; see also, Stribling v State of New York, Ct Cl, August 12, 2002, Lebous, J., MacLaw #2002-019-025[3]).
The State does have a duty to provide reasonable and adequate medical care to its inmates (
Auger v State of New York, 263 AD2d 929, 930; see also Powlowski v Wullich, 102 AD2d 575, 587). The State may be cast in liability for injuries that result because its physicians fail to use ordinary and reasonable care or to exercise their best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field (Hale v State of New York, supra; Jacques v State of New York, 127 Misc 2d 769, 771). However, only expert medical proof can establish the necessary legal causation required to impose liability and demonstrate that there was a deviation from good and accepted standards of medical care (see Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916; Spicer v Community Family Planning Council Health Ctr., 272 AD2d 317; Lyons v McCauley, 252 AD2d 516, lv denied 92 NY2d 814). Here, the Claimant maintains that his alleged heart disease should have prevented the facility from assigning him to a top bunk and the failure of the facility to so recognize his condition and assign the lower bunk caused his injuries.
I find that Claimant needed expert testimony to support the claim that the mere prescribing of nitroglycerin was enough to establish actual or constructive notice to the facility that Claimant should have been assigned a lower bunk for medical reasons in contradiction of DOCS' policy in order to prevail (
Duffen v State of New York, 245 AD2d 653, lv denied 91 NY2d 810). The State's response to Claimant's assertions upon admission to Collins was reasonable - Claimant was administered at least one EKG and prescribed nitroglycerin. He refused subsequent requests, prior to the fall, for repeat EKG's (Exh. D, pp. 93-94). He also exhibited no sign of chest pains in the months preceding the fall (Exh. D, pp. 28-29). In fact, he used the top bunk for 30 days prior to the fall without incident. The medical significance of these facts as they relate to Claimant's ability to use a top bunk is a matter that falls outside the common knowledge of the fact finder. I heard no testimony from a medical expert asserting that heart disease should automatically qualify an inmate for a lower bunk assignment. I would necessarily have required expert input on the issue of whether or not he should have been assigned the lower bunk based on his medical condition (Stribling v State of New York, Ct Cl, August 12, 2002, Lebous, J., MacLaw #2002-019-025, supra).
Regarding negligence, Dr. Cetin testified that an inmate could request, at any time, a lower bunk assignment. The inmate would then receive a medical evaluation to determine whether or not such an assignment was required. It appears that Claimant initially requested a lower bunk and offered the prescribed nitroglycerin as justification. However, in caring for Claimant's alleged heart condition, the facility attempted several examinations of Claimant, and Claimant did not always permit medical personnel to evaluate him. On those occasions that Claimant was evaluated by medical personnel, Claimant had the opportunity but failed to request an evaluation for a lower bunk restriction. Claimant made no further requests or complaints until after his accident. The facility arranged a coronary consultation at an outside hospital, which indicated that Claimant did not have heart disease. The objective findings resulting from Claimant's medical evaluations combined with Claimant's failure to request an evaluation specifically for a lower bunk restriction, demonstrate that no such restriction was ever required. The facility's treatment and follow-up with Claimant was reasonable.

Claimant's case lacked competent expert testimony on the issue of medical malpractice. Similarly, Claimant has failed to demonstrate any act or omission on the part of Defendant that would constitute negligence. The claim is dismissed (
Duffen v State of New York, 245 AD2d 653, supra, lv denied 91 NY2d 810). LET JUDGMENT BE ENTERED ACCORDINGLY.

March 5, 2003
Rochester, New York

Judge of the Court of Claims

It appears that an EKG was administered on March 1, 1995 at Gowanda. Although no results are noted in the Medical Record, it would be logical to conclude that the nitroglycerin was prescribed because of the results of that EKG. This would be consistent with the findings of the March 6, 1995 EKG that showed slight abnormalities.
Temporary placement in a lower bunk for "acute injury or serious medical conditions" is permitted, but even temporary placement does not automatically encompass heart disease. According to Officer Oehler, in Claimant's case, even his possession of nitroglycerin pills and patches was not enough to warrant his restriction to a lower bunk, he still had to have a clinical evaluation from the facility medical staff.
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