New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2004-013-043, Claim No. 106782, Motion No. M-68524


Synopsis


Claimant's motion for partial summary judgment on the issue of liability in medical malpractice claim is granted for failure to diagnose colon cancer.

Case Information

UID:
2004-013-043
Claimant(s):
LLOYD B. JONES, as Administrator of the Estate of Donald J. Jones
Claimant short name:
JONES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106782
Motion number(s):
M-68524
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:

FITZSIMMONS, NUNN & FITZSIMMONS, LLP
BY: MARK S. NUNN, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 26, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On July 21, 2004, the following papers were read on motion by Claimant for partial summary judgment:

Notice of Motion, Affirmations and Exhibits Annexed


Letter from Defendant dated July 16, 2004


Filed Papers: Claim; Answer


Upon the foregoing papers, this motion is granted.

Claimant seeks partial summary judgment on the issue of liability in the instant claim, which sounds in medical malpractice for the failure to diagnose colon cancer.

In support thereof, Claimant supplies the affirmation of a board certified forensic pathologist who opines that there was a deviation of the accepted standard of medical care by the Defendant in relation to the symptoms of colon cancer that decedent first displayed while an inmate under the care, custody and control of the Defendant at Attica Correctional Facility on or about November 1999, and that such deviation and delay in diagnosis and treatment was the proximate cause of decedent's injuries and ultimate demise on September 22, 2003 from adenocarcinoma of the colon with widespread metastases.

The Defendant has advised the Court that its expert has reviewed the medical records of the decedent and the moving papers, and, as a result thereof, does not oppose the motion. The Defendant's position here reflects an admirable and responsible approach to litigation. It is fair to say the State is well-represented when it concentrates its opposition to matters where it has arguable and supportable positions and does not engage in superfluous argumentation on meritless issues. This approach tends to give more credence to those matters where the State does provide vigorous opposition.

Accordingly, the Defendant's liability is established, and the motion for partial summary judgment on the issue of liability is granted. The Clerk is directed to enter an interlocutory judgment



consistent herewith. This matter will be called at a calendar call and a trial on the issue of damages will be scheduled at that time.

July 26, 2004
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims