New York State Court of Claims

New York State Court of Claims

ESSA v. THE STATE OF NEW YORK, #2003-032-530, Claim No. 104877


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:
Jaiteh Essa, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Frederick H. McGown, III, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 31, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

On June 5, 2001, claimant, then an inmate at Franklin Correctional Facility, underwent eye surgery (cataract removal) at Albany Medical Center (AMC). Claimant has alleged and at trial testified that when he returned to prison, he was not given medication that had been prescribed for the eye. Instead, he was given medication that was inappropriate and caused further damage. The result, according to claimant, is permanent partial loss of vision in his left eye.

Claimant testified that when he was examined at Albany Medical Center the day after the surgery, he was told by the physician that some ointment would be provided for the eye. He never received that ointment, however. On June 14, 2001, he returned to Albany Medical Center for a follow-up visit and was told that his eye had become infected. Again, he was prescribed medication, this time for the infection, and again, according to claimant, it was not provided to him.

Claimant's facility health records (Exhibits 1, A) contain the following entries relevant to this claim:
June 6, 2001 Consultant report (AMC): Prescribes Tylenol for pain and "Maxitrol oph oint 1/4" os" and states that patient may wear dark glasses until follow-up visit in one week. Signed by Dr. Patel.
June 6, 2001 Claimant discharged to dorm. Note that "neomycin & polymixin opth. Oint came with pt. Instructed in use with apparent understanding."
June 8, 2001 Complaints of light bothering eye; advised to wear patch
June 15, 2001 Returned from trip to AMC. Notation that claimant's eye was red: "Was given Oconflox x 6 day. No chart was sent w/ Inmate. Med records forgotten at AMC."
June 19, 2001 Consultant report (AMC): secondary conjunctivitis over donor site. "[Discontinue] porysporine ointment for now. Start Maxitrol oph oint 1/4" OS 6x day. Pt must take meds. Please allow pt to administer med himself. For the interim until Maxitrol avail. Pt given tobradex [?] to use." This report is also signed by Dr. Patel.
June 19, 2001 "[Ophthalmologist] Dr. Patel called - states inmate is telling him he has NOT received ordered medication – It was explained that our [prescriptions] comes from Pennsylvania & this sometimes causes a slight delay. Dr. Patel stated he was placing inmate Essa on maxitrol opthalmic ointment 1/4" strip [left] eye 6x day. [Prescription] ordered stat by Dr. Champagne."
June 19, 2001 "RMU - to start Maxitrol ointment rec'd Rx from [Eckerd] but suspension was sent - [Eckerd] pharmacist contacted. They will correct and deliver tonight. 2000- Maxitrol opth ointment issued to put with instructions."
June 28, 2001 Examination sheet reports status of the surgery site and states that Maxitrol is to be continued.

It appears from these records that claimant was given one or more types of ointment (neomycin & polymixin and/or Oconflox and/or porysporine) immediately after his operation but there was a delay in providing the Maxitrol that was ordered for him. The first ointment he was given may have caused irritation (report of reddened eyes) and was ordered discontinued when he was seen for a follow-up visit on June 19
th. The Maxitrol had not yet arrived at that time, and a third type of ointment (tobradex) was to be used until it arrived.
"[T]he 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), and is held to the same standard of care as private individuals and institutions engaging in the same activity (Schrempf v State of New York, 66 NY2d 289, 294 [1985]). Inmates, therefore, are entitled to reasonable and adequate medical care (Kagan v State of New York, 221 AD2d 7, 11[2d Dept 1996]; Powlowski v Wullich, 102 AD2d 575, 587 [4th Dept 1984]). To prove that he received improper medical care, claimant must establish that there was a departure from the accepted standard and that such departure was a proximate cause of an injury (Amsler v Verrilli, 119 AD2d 786 [2d Dept 1986]; see, Brown v State of New York, 192 AD2d 936 [3d Dept 1993], lv denied 82 NY2d 654).
Frequently, it will be necessary for the claimant to present expert evidence or testimony in order to establish a prima facie case of medical malpractice (
Giambona v Stein, 265 AD2d 775 [3d Dept 1999]; Macey v Hassam, 97 AD2d 919 [3d Dept 1983]). This rule applies to pro se claimants, as well as those represented by counsel (Duffen v State of New York, 245 AD2d 653 [3d Dept 1997], lv denied 91 NY2d 810).[1]

In the instant claim, it is possible to conclude from the records in evidence that there was a delay in getting the precise type of medication that was initially ordered for claimant. Claimant has not, however, established that the delay in receiving this ointment or use of any other type of ointment caused actual harm to his eye, prolonged his recovery from surgery, or led to any type of permanent damage to his eye. To establish this claim, claimant would have to provide testimony from an expert that the course of treatment provided here, including the

delay in getting Maxitrol ointment, deviated from the accepted standard of care or that it resulted in compensable injury.
The Chief Clerk is directed to enter judgment dismissing the claim.

Let judgment be entered accordingly.

December 31, 2003
Albany, New York

Judge of the Court of Claims

[1] The practical difficulties this poses and the alternatives available to pro se claimants have been acknowledged and discussed in Grant v State of New York (UID #2001-013-013, Claim No. 98192, Motion Nos. M-63552, M-63571, August 15, 2001, Patti, J.).