New York State Court of Claims

New York State Court of Claims

MANNING v. THE STATE OF NEW YORK, #2003-031-510, Claim No. 101009


Claimant failed to demonstrate that State was negligent in providing adequate medical care. Claim dismissed.

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:
New York State Attorney General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 20, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Ronald J. Manning, filed Claim No. 101009 on September 3, 1999, alleging he was the victim of negligence and medical malpractice at Wende Correctional Facility. He alleges that, between April 28 and May 26, 1999, Defendant's medical providers negligently and carelessly denied him proper treatment, or provided him with incorrect medications, and failed to properly diagnose an acute intestinal infection. Claimant alleges a continued pattern of mis-diagnosis and incorrect medication that caused daily pain and suffering, loss of sleep, emotional distress, and weight loss. I held the trial of this claim on March 10, 2003 at Wende Correctional Facility.

Claimant testified that, on April 28, 1999, he began to suffer from severe pains in his stomach, vomiting, diarrhea, and fever. According to Claimant, though he continually complained to facility health care providers, he was not properly examined, nor medicated until May 26, 1999, when he was finally seen by a specialist who diagnosed him with an acute intestinal infection. Claimant, who was housed in the Wende Special Housing Unit ("SHU") during the period in question, stated that a complaint was made to Dr. Romeo Punzal sometime between April 28 and May 5, 1999. He asserts that only his temperature was taken and nothing else was done. Claimant then saw Dr. Jose Deperio on May 5, 1999, and claims that Dr. Deperio promised to change or increase Claimant's pain medication. According to Claimant, this was never done. Claimant saw Dr. Punzal again on May 12, 1999 and, upon voicing his complaints, was told that x-rays would be taken. No x-rays were ever taken.

According to Claimant, on May 15, 1999, after continued complaining, Claimant was admitted to the facility infirmary were he stayed for 2 days until May 17, 1999. On May 17, 1999, Dr. Deperio told Claimant that he was not going to increase his pain medication, but that he was going to prescribe Zantac to help ease his gastro-intestinal distress. The Zantac was not received until May 24, 1999. On May 19, 1999, Claimant again saw Dr. Deperio on SHU rounds and was told that his pain medication would be changed and that he would be seeing a specialist soon. His pain medication was not changed, however. Claimant's complaints continued until 10:00 P.M. on May 23, 1999 when he was again taken to the facility infirmary.

Thereafter, on May 26, 1999, Claimant was examined by Dr. O'Connell and a specialist, Dr. Rickowski. At this time, he was given an antibiotic and a pancreatic enzyme to help with his digestion. After receiving these medications, Claimant's symptoms subsided and his complaints ceased. Claimant argues that the pain and suffering he was forced to endure between April 28, 1999 and May 26, 1999 were the result of Dr. Punzal's and Dr. Deperio's failure to properly examine, diagnose and treat him.

Upon motion by Defendant at the conclusion of Claimant's case, I dismissed Claimant's medical malpractice cause of action due to Claimant's failure to present expert medical testimony that the care he received had deviated 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). I denied Defendant's motion to dismiss Claimant's medical neglect or negligence cause of action.
Defendant's account of Claimant's medical treatment during the time in question differs greatly from Claimant's. Defendant called Dr. Deperio, who testified at length about the Claimant's medical condition and the care and treatment he received. Much of Dr. Deperio's testimony resulted from his review of relevant portions of Claimant's medical records which were received into evidence without objection as exhibit A. Dr. Deperio testified that he first saw Claimant on April 21, 1999, at which time Claimant was receiving multivitamins, a food supplement of Carnation Instant Breakfast, and the prescription Zerit, an antiviral medication. In addition to Zerit, between March and June of 1999, Claimant was receiving several antibiotics including Zithromax, Keflex, and Hydroxyurea. He also received the antiviral medication Viramune, and was prescribed Tigan for nausea and vomiting, and the antifungal medication Nystatin. All of these medications related to Claimant's serious pre-existing medical condition.

Dr. Deperio testified that all of Claimant's complaints were consistent with acknowledged side effects of the many medications Claimant was taking for his pre-existing medical condition. Also, Dr. Deperio testified that, in addition to the medications Claimant was already receiving, he was prescribed a medication for diarrhea, and the anti-spasmodic medication Dendyl.

The Claimant's medical records, both exhibit 1 and exhibit A, demonstrate that Claimant was seen often, but did not complain of the symptoms related to this action until May 14, 1999 at 11:00 P.M. He was seen at sick call the next day, May 15, 1999, relating to his complaints that he was vomiting blood and bleeding rectally. He was admitted to the facility infirmary at that time for observation. However, no vomiting or rectal bleeding were observed and, on May 17, 1999, he was returned to his cell.

On May 19, 1999, Claimant was again seen by Dr. Deperio. At this time, Claimant had no nausea or vomiting and complained only of a "gassy feeling." It was at this time that Dr. Deperio prescribed the anti-spasmodic medication Dendyl and referred Claimant to a specialist. Four days later, on (Sunday) May 23, 1999, Claimant was again admitted to the infirmary with complaints of rectal bleeding and abdominal pain. He had no nausea or vomiting at this time. He was treated in the infirmary until (Wednesday) May 26, 1999, at which time his complaints relating to this action ceased.

Dr. Deperio concluded his testimony by opining that Claimant's care and treatment during the period in question was consistent with contemporary medical standards.

As stated earlier, in addition to his medical malpractice cause of action, Claimant alleged a medical negligence cause of action. A cause of action sounding in medical negligence, in essence, alleges negligent omissions or commissions by State caregivers which can be readily determined without the necessity of expert testimony. However, this theory is limited to "those cases where the alleged negligent act may be readily determined by the trier of the facts based on common knowledge"
(Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256). Such cases have involved scalding a patient with a hot water bottle (Phillips v Buffalo General Hospital, 239 NY 188), leaving an electric light bulb under the sheets (Dillon v Rockaway Beach Hospital, 284 NY 176), leaving a postoperative patient unattended in a bathroom (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, supra), and other similar circumstances.
In this action, expert testimony is not required to demonstrate Claimant's allegations that Defendant negligently failed to examine him, or negligently failed to afford him access to medical care. I find, however, that Defendant was not negligent in either of these regards. The record before me indicates that not only was the onset of Claimant's symptoms much later than he indicated but that Defendant provided Claimant with daily access to medical care and certainly made reasonable attempts to alleviate Claimant's complaints once he voiced them.

Whether or not Defendant made an adequate and timely diagnosis of Claimant's condition is a more difficult matter. Should the Claimant have been diagnosed with an acute intestinal infection earlier than he was? Whether a claim is couched in terms of negligence or medical malpractice, if the issues involve conditions beyond the common knowledge of a fact finder, expert medical proof will be required to sustain a recovery (
Duffen v State of New York, 245 AD2d 653, lv denied 91 NY2d 810).
I note that Claimant had a serious pre-existing medical condition which required a plethora of medications, many of which are known to cause side effects similar to the problems Claimant was experiencing. Also, many of these medications were antibiotics and antivirals, which may have reduced the likelihood that Claimant suffered from an infection. For me to conclude that Defendant was negligent for not reaching this diagnosis earlier, or for not pursuing a different course of treatment, I would necessarily require expert input on the subject. Claimant's failure to present any expert medical proof tending to show that the State deviated from accepted medical standards in diagnosing and treating his acute intestinal infection is fatal to this portion of his claim.

Consequently, Claimant has failed to establish a prima facie case of either negligence or medical malpractice. Accordingly, his claim is dismissed. All motions on which I previously reserved decision are hereby denied.


May 20, 2003
Rochester, New York

Judge of the Court of Claims