New York State Court of Claims

New York State Court of Claims

MORENE v. THE STATE OF NEW YORK, #2003-031-520, Claim No. 105686


Synopsis


Claimant failed to demonstrate that restricted diet was causally related to his alleged symptoms. Claim dismissed.

Case Information

UID:
2003-031-520
Claimant(s):
ANTHONY MORENE
Claimant short name:
MORENE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105686
Motion number(s):

Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ANTHONY MORENE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 21, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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 No. 4933.

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 appropriately.

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 91 NY2d 810).
This claim is dismissed.

LET JUDGMENT BE ENTERED ACCORDINGLY.

October 21, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims