Claimant contends that during his incarceration at Sing Sing Correctional
Facility (Sing Sing) he received inadequate medical care. Specifically,
claimant maintains that X-rays should have been ordered at claimant's first
complaint of left wrist pain, rather than ordering them upon claimant's second
visit to sick call.
Claimant testified that on December 24, 2002, after playing handball, he
reported to sick call complaining of left wrist pain. Physician's Assistant
Murtha examined claimant and concluded that his wrist was sprained. Claimant
was given an ice wrap, an analgesic balm and ibuprofen. One month later,
claimant returned to sick call complaining of continued pain in his wrist.
X-rays were ordered and the analgesic balm and ibuprofen were continued.
On February 12, 2003, Dr. Perilli examined the X-rays and determined that
claimant had a fractured wrist. Claimant was then referred to Dr. McGill, a
hand surgeon, at St. Agnes Hospital. On March 23, 2003, Dr. McGill performed
surgery on claimant.
Dr. John Perilli, Sing Sing's medical director, testified that he reviewed
claimant's medical history (Ex 1) and that Murtha's determination that claimant
had a sprained wrist was appropriately based upon an observation of no swelling,
no discoloration, no tenderness, and no limitation in claimant's range of
motion. Dr. Perilli testified that it is reasonable and customary to evaluate a
patient based upon a physical evaluation and to order X-rays at a later date if
the patient complains of continued pain. Perilli maintained that claimant's
presentation at sick call on December 24, 2002 was consistent with Murtha's
Perilli testified that, while a note in claimant's ambulatory health records
indicated follow up X-rays, X-rays do not always show carpal bone fractures
which tend to deteriorate over time. Further, had claimant returned to sick
call earlier, then X-rays could have been ordered at an earlier date. Perilli
could not state with any degree of medical certainty whether the six weeks
between claimant's initial visit and his second visit resulted in an
unreasonable delay in diagnosis of claimant's fracture or was a contributing
cause in any injury to claimant. Perilli stressed that the determination to
order X-rays was a medical judgment guided by the presentation of physical
symptoms presented by claimant at sick call.
"[A] duty of ordinary care is owed by prison authorities to provide for the
health and care of their charges" (Gordon v City of New York
, 120 AD2d
562, 563, affd
70 NY2d 839; Cauley v State of New York
, 224 AD2d
381). To establish a prima facie case of medical malpractice, a claimant must
prove, inter alia
, that defendant departed from good and accepted medical
practice and that such departure was a substantial factor in producing the
alleged injury (see Tonetti v Peekskill Community Hosp.
, 148 AD2d
525; Mortensen v Memorial Hosp.
, 105 AD2d 151). A departure from good
and accepted medical practice cannot be inferred from expert testimony; rather
the expert must expressly state, with a degree of medical certainty, that
defendant's conduct constitutes a deviation from the requisite standard of care
(see Stuart v Ellis Hosp.
, 198 AD2d 559; Sohn v Sand
AD2d 789; Salzman v Alan S. Rosell, D.D.S., P.C.
, 129 AD2d 833).
Significantly absent from claimant's case was any competent medical evidence,
either from a treating physician, or from an expert whose opinion was based upon
the available medical records. Without such evidence, claimant's own
unsubstantiated assertions and speculations were insufficient to establish merit
and a prima facie case (see Wells v State of New York
, 228 AD2d
581; Mosberg v Elahi
, 176 AD2d 710, affd
80 NY2d 941; Quigley
, 124 AD2d 398). Claimant has failed to establish that defendant
was negligent and that such negligence proximately caused claimant any harm for
which money damages would be appropriate (see Naughton v Arden Hill
, 215 AD2d 810 [even assuming defendant committed malpractice in its
failure to diagnose and admit patient to hospital, there was no proof of
proximate cause, i.e., that, had the patient been admitted, the risk of a heart
attack would have been prevented or lessened]; Brown v State of New York
192 AD2d 936 [no proof that delay in treatment contributed to the loss of
Accordingly, the claim warrants dismissal.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 107546.