New York State Court of Claims

New York State Court of Claims

ASTACIO v. THE STATE OF NEW YORK, #2003-032-537, Claim No. 104577


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:
William Astacio, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael Rizzo, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 31, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant alleges that he suffered serious physical injury when, in the fall of 2000, officials at Clinton Correctional Facility failed to carry out the physicians' orders and thereby deprived claimant of the reasonable and appropriate medical care to which he was entitled.

Claimant testified that he has been diagnosed as suffering from muscular dystrophy and consequently is required to wear special leg braces with attached shoes and to receive regular physical therapy. He stated that these needs were being met until he was transferred to Clinton Correctional Facility in June 2000. He sought medical attention because of pain and numbness in his feet and, on September 25, 2000 was examined by a Dr. Ellen. Consultation with a neurologist was requested and, since claimant's shoes appeared to be too tight, with an orthotics specialist as well.

An October 18, 2000 neurological consultation resulted in an order that claimant be refitted for new leg braces and that he be provided with ongoing physical therapy. In November 2000, he was seen by an orthotics specialist, who concluded that his braces were satisfactory but that he needed new, looser shoes: "Existing boots are too tight and cause toes to go numb." (Exhibit 1, 4
th page). This consultant was unable to provide the correct size boots because he needed a size 5 1/2 to 6, while the smallest pair available was size 7. Claimant was not measured for new boots until April 4, 2001 (id, 3rd page).
Claimant testified that in April 2001, he filed a grievance protesting the medical department's failure to carry out these physicians' orders. This grievance was denied initially and on appeal to the Superintendent. A final appeal to the Department of Correctional Services' (DOCS') Central Office Review Committee was denied on May 16, 2001.

Claimant's new shoes were received on May 3, 2001
, and the copy of the medical records provided by defendant (Exhibit A) also contains a record of his physical therapy sessions which apparently began on May 30, 2001. At trial, claimant explained that he was not able to participate in physical therapy until after he was outfitted with the proper braces and shoes.
Claimant testified that during the seven-month wait for proper equipment and therapy, he lost considerable muscle strength and continues to have greater problems with balance and stamina than he did prior to the fall of 2000. When asked if he had medical evidence to support these allegations regarding his physical condition, claimant stated that he was supposed to have had a six-month follow-up visit with the neurologist (Exhibit 1, 2
nd page) but that had not been provided. On cross-examination, however, claimant recalled that he had seen a neurologist on July 11, 2001 (Exhibit A, 12th page). At that time, he complained of leg cramps, but the doctor noted that his braces were working well.
Testifying on behalf of the State was John Mitchell, Nurse Administrator at Clinton Correctional Facility, who explained that there are two orthotic vendors assigned to the hub, which consists of eight prisons altogether. When a physician asks for an orthotic consultation, a consultation request is filed and then reviewed in Albany. It typically takes three to four months for orthotic footwear, which is handled by a company in Vermont, to be produced. In the instant situation, in November 2000, claimant was initially sent to the vendor who supplied braces, not footwear. This had the result of requiring a second orthotics consultation, with the footwear supplier. That second consultation didn't occur until April 2001, and Mr. Mitchell had no explanation for the delay from November to April.

It is undisputed that a prisoner who must rely on prison authorities to treat his medical needs has a fundamental right to reasonable and adequate medical care (Powlowski v Wullich, 102 AD2d 575, 587 [4th Dept 1984]). Further, it is the State's duty to render medical care without undue delay and, therefore, whenever delays in diagnosis and/or treatment are a proximate or aggravating cause of a claimed injury, the State may be liable (Marchione v State of New York, 194 AD2d 851, 855 [3d Dept 1993]). "While the State has a duty to render adequate medical services to inmates without undue delay, in order for the State to be liable it must be shown that the delays in diagnosis and/or treatment were a proximate or aggravating cause of the claimed injury" (Marchione v State of New York, 194 AD2d at 854-855).
In most instances, 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] There are exceptions to this rule, however. Where the injured party complains not of the treatment chosen but of delay in receiving such treatment, it may be possible to prove an injury and a causal connection to the negligent act on the basis of common lay knowledge, without any medical expert testimony (Lanpont v Savvas Cab Corp., 244 AD2d 208, 212 [1st Dept 1997]; Coursen v New York Hospital-Cornell Medical Center, 114 AD2d 254 [1st Dept 1986]). In those instances, a claimant may rely on his own testimony and the introduction of his medical records (Falcaro v Kessman, 215 AD2d 432 [2d Dept 1995]; Alvarez v Mendik Realty Plaza, 176 AD2d 557 [1st Dept 1991], cited in Mackey v State of New York, UID #2000-015-501, Claim No. 96267, March 20, 2000, Collins, J.). In the instant case, claimant has established that at least by October 2000, it was known that the brace and shoes he was using were not satisfactory and should be replaced. The following month, November 2000, he was seen by an orthotics consultant who determined that while the braces were satisfactory, the shoes (boots) claimant was using were too small and caused numbness. He was not measured for the boots until April 4, 2001, some five months later. The State's witness admitted that he could not explain this delay, other than to say that it usually required three to four months to get an orthotics consultation and new equipment. The first consultation was obtained within a month of being ordered, however, and once claimant was measured for the new shoes, they arrived a month later. The Court concludes, therefore, that the State is responsible for at least five months of unwarranted delay in providing claimant with needed medical equipment. Because it is undisputed that claimant was in discomfort and was unable to participate in physical therapy until he received the new shoes, it is also possible for the Court to determine, based on common experience, that this delay caused actual injury to him. To determine whether the delay also had lasting or permanent effects, as asserted by claimant, would require expert testimony from a medical professional, so there can be no recovery for those alleged injuries. The Court determines that claimant is entitled to the sum of $3500.00 for the unnecessary pain and discomfort suffered during the five months of unwarranted delay.
The Chief Clerk is directed to enter judgment in favor of claimant in the amount of $3500.00.

To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act Section 11-a (2).

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.).