New York State Court of Claims

New York State Court of Claims

VELEZ v. THE STATE OF NEW YORK, #2004-010-022, Claim No. 107546


Case Information

LUIS VELEZ The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 15, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 diagnosis.

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, 180 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 v Jabbur, 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 Hosp., 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 claimant's larynx]).

Accordingly, the claim warrants dismissal.

July 15, 2004
White Plains , New York

Judge of the Court of Claims