New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2004-010-024, Claim No. 101370


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):

Terry Jane Ruderman
Claimant's attorney:
By: DeBrosse, Villarreal & Studley, LLP
Clara M. Villarreal, Esq., Of Counsel Richard DeBrosse, Esq., Of Counsel
Defendant's attorney:
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 17, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate who alleged that his exposure to TB while incarcerated at Tappan CF was the result of defendant's negligence, had his claim dismissed. He failed to establish that defendant was negligent and that such negligence proximately caused him any harm for which money damages are warranted.

Claimant contends that during his incarceration at Tappan Correctional Facility (Tappan), he was exposed to another inmate who had an active case of Tuberculosis (TB) and on April 23, 1999, claimant tested positive for TB. Claimant maintains he contracted the disease due to defendant's negligence in failing to take the proper steps to prevent the spread of the disease. Claimant further contends that he was not given proper and adequate medical treatment after he tested positive for TB. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Procedural History

Defendant's Motion to Dismiss

Claimant served defendant with a Notice of Intention To File A Claim on July 30, 1999. A claim was filed on November 8, 1999. Defendant asserted in its answer lack of jurisdiction over the claim due to claimant's failure to comply with the time requirements set forth in Court of Claims Act Sections 10 and 11. At the commencement of the trial, defendant moved to dismiss on this basis. The Court finds that claimant failed to serve either a claim or a Notice of Intention upon defendant within 90 days of accrual of that branch of the claim which is based upon claimant's exposure to TB. The provisions of Court of Claims Act § 10 and § 11 are to be strictly construed and failure to comply with the service provisions "is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-98). Accordingly, defendant's motion to dismiss is hereby granted to the extent that the branch of the claim which is based upon claimant's exposure to TB is dismissed on jurisdictional grounds[1] (see Flynn v City Univ. of N.Y. at Brooklyn Coll., 6 AD3d 656 [failure to comply with time limitations set forth in the Court of Claims Act results in a lack of jurisdiction]).
The remainder of the claim, which is based upon defendant's alleged failure to provide claimant with adequate medical treatment, can withstand defendant's motion to dismiss to the extent that claimant has alleged a continuing wrong. Accordingly, the Court will address the merits of that part of the claim.The Trial
When claimant entered the correctional system in May 1997, he tested negative for TB. A year later, he again tested negative. Claimant was incarcerated at Tappan, a medium security facility annexed to Sing Sing Correctional Facility (Sing Sing), from November 1997 to February 2000. All of the housing units within Tappan were dormitory style and inmates were assigned to "cubes,"[2] rather than cells. Claimant was initially placed in a unit for substance abusers. After five or six months, he was transferred to Dorm 10-2.

Claimant testified that there are 70 inmates in a dorm. All of the residents cooked together and used the same shower, gym, and television area. Claimant recalled that inmate Angel Rodriquez had been in claimant's drug treatment program and in Dorm 10-2. According to claimant, in November 1998, Rodriquez had a chronic cough, was sweaty, and often stayed in bed. Claimant testified that Rodriquez went to sick call daily, and after each call, he returned to the dorm. This persisted until one Friday in November 1998 when Roriquez collapsed in the yard and was taken to the hospital. Coincidently, claimant and Rodriquez were in the infirmary together and claimant observed that Rodriquez was placed in isolation. After this incident, claimant requested that he be tested for TB because it was rumored that Rodriquez had TB. There was never any formal notification to the inmates concerning an outbreak for TB. Claimant further testified that he observed inmates John Simmons, Jerome Rushing and two others with conditions similar to those exhibited by Rodriquez. At no time were any of these inmates segregated from the rest of the population. They were in the same dorm as claimant and they all interacted daily.

According to claimant, at least five times between November 1998 and April 1999, he was seen by the medical staff for various reasons and requested a TB test. A request made on March 29, 1999 is documented in claimant's Ambulatory Health Record (Ex. 1, p 39). In April 1999, claimant was tested for TB by the Department of Health and the results were positive (Ex. A). After the diagnosis, claimant took pills each morning for six months. During that period, he observed that four other inmates, including Rushing and Simmons, were undergoing the same regimen. Claimant said that he experienced side effects from the drugs that included stomach cramps, nausea, aches, dizziness and weakness, which lessened over time. An x-ray taken of claimant's lungs on April 23, 1999 revealed that they were normal and that he had no active disease. Dr. Harish Moorjani testified that, commencing in June 1998, he was an independent subcontractor hired by New York State to run inmate clinics at St. Agnes Hospital in White Plains. Upon review of claimant's medical history, Moorjani testified that since claimant had tested negative for TB on July 10, 1998, and positive on April 23, 1999, his exposure to the disease had to have occurred between those dates.

Dr. John Perilli, the Medical Director at Sing Sing since December 1999, testified that he had no recollection of an outbreak of active TB at Tappan in 1998, which was before his employment. He explained that all full blown cases of TB have to be reported to the New York State Department of Health. On April 23, 1999, claimant was given a skin test for TB, as part of a "contact trace." Whenever a positive case of TB is found, the Department of Health tests anyone who might have come in contact with an individual who has the disease.

Referring to claimant's medical records at Sing Sing, Perilli testified that on April 23, 1999, claimant tested positive for TB but he denied having symptoms indicative of active TB. His liver function test was normal, as well as his lungs (Ex. 1, pp 36, 43). Claimant was given a standard six month preventative therapy regimen of Isoniazid and vitamin B6. Sing Sing medical personnel directly observed that these medications were taken by claimant and he never developed an active case of TB.

Perilli testified that a positive skin test for TB indicates that an individual has been infected with the organism but, if there are no symptoms, the person does not have the disease. Even if claimant had had a TB test prior to April 23, 1999, the end result would be the same. The six month preventative treatment was a standard protocol. Once that was completed, claimant was considered cured and should not develop TB unless he had another disease which compromised his immune system.

"[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). The theory of simple negligence is restricted to those cases where the alleged negligent acts are readily determinable by the trier of the facts on common knowledge (see Weiner v Lenox Hill Hosp., 88 NY2d 784; Rey v Park View Nursing Home, 262 AD2d 624; Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256). However, where the treatment received by the patient is an issue, the more specialized theory of medical malpractice must be followed (see Twitchell v MacKay, 78 AD2d 125; Hale v State of New York, 53 AD2d 1025). 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 Cavlin v New York Med. Group, 286 AD2d 469; Tonetti v Peekskill Community Hosp., 148 AD2d 525). 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).

In the instant case, claimant alleged that defendant failed to provide him with adequate medical care. This is belied by the record. Claimant's medical records show that after it was established that claimant had been exposed to TB, preventative treatment was initiated and he was given 6 months of ongoing treatment and medical care. The Court finds the testimony of Dr. Perilli to be most convincing (see Scariati v St. John's Queens Hosp., 172 AD2d 817 [trier of fact was free to reject conflicting testimony regarding causation]). Claimant did not establish that earlier testing would have had any effect on claimant's condition or treatment.

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]).

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).

Accordingly, the claim warrants dismissal.


September 17, 2004
White Plains, New York

Judge of the Court of Claims

[1]In any event, the evidence failed to establish the merits of that branch of the claim.
[2]All quotations are to the trial notes or audiotapes unless otherwise indicated.