Claimant Anthony Morene (Claimant) filed his claim number 105686 on March 4,
2002, alleging medical malpractice and medical negligence for failing to
"adequately record and examine" the state of Claimant's health following the
imposition of a restricted diet for disciplinary reasons. I conducted a trial
on this claim on September 8, 2003 at the Wyoming Correctional Facility.
I note that Claimant's direct testimony consisted of his reading the
allegations in his claim. In sum and substance, his testimony is as follows.
While residing in Attica Correctional Facility (hereinafter "facility"),
Claimant was placed on the "loaf diet" as punishment for performing an Unhygenic
Act. The restricted diet lasted from January 12, 2002 through February 1, 2002.
Claimant stated he experienced stomach cramps, dizziness, and weakness during
this time. Other than the loaf, Claimant was only permitted to ingest water.
Claimant testified that he brought his symptoms to the attention of the facility
medical staff, specifically, P.A. Magee, P.A. Edwards, and R.N. Higley, each day
at approximately 11:47 a.m. He further alleges that the medical staff at the
facility failed to review Claimant's health status within 24 hours of being
placed on the diet as required by Department of Correctional Services' Directive
The State produced Registered Nurse Barbara Higley. Nurse Higley testified
that she has been employed by the Department of Correctional Services as a
registered nurse since 1983. She was assigned to the Special Housing Unit (SHU)
at the facility during the month of January 2002. She made the sick call rounds
in SHU. She provided medical treatment if necessary and appropriate and
determined whether or not inmates needed to see the medical doctor.
During Nurse Higley's testimony, the State produced Exhibit A. Exhibit A is
Claimant's "Health Services Log for Restricted Diet" and Claimant's Ambulatory
Health Record for the time period in question. The restricted diet log is for
one week at a time. Claimant was seen each day and given an opportunity to
discuss any side effects. The witness opined that, if Claimant had complained,
his comments would have been noted on the log and in the Ambulatory Health
Record. Claimant's log and health record are devoid of any diet related
complaints. In addition, Claimant was asked if he wanted his blood pressure
checked and his weight measured on the third and seventh day of each week on the
restricted diet. Claimant's record reflects that he refused each opportunity.
On cross-examination, the witness noted that "refusal slips" are required only
for refusal to take medication and a selective number of other medical
procedures; they are not required for a restricted diet.
Claimant moved into evidence Exhibit 1, his grievance that requested that his
treatment, while on the restricted diet, be investigated, which I accepted. I
note that the Central Office Review Committee's decision was that an
investigation would take place and the result was that Claimant had been treated
At the close of Claimant's case, the State moved to dismiss the claim for
failure to state a cause of action. I now grant the State's motion to dismiss
as the Claimant failed to show, through expert testimony or otherwise, that his
alleged symptoms were causally related to the loaf diet (
see Duffen v State of New York
, 245 AD2d 653, lv denied
This claim is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.