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
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.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 101370.