Claimant alleges that on September 5, 1998, he was injured while attempting to
catch a pass during a game of touch football at the Orleans Correctional
Facility (Orleans) where he was
According to Claimant, the football struck the little finger on his right hand.
He reported the injury immediately to the correction officer on duty and was
sent to the infirmary. The staff at the infirmary examined Claimant and noted
that his finger was swollen, but could be bent. The finger was splinted and
Claimant was instructed to apply ice 15 minutes on and 15 minutes off. He was
given Ibuprofen for pain and to reduce the swelling. Claimant returned to the
infirmary five days later complaining of pain. At that time, his finger was
ecchymotic (purplish) with limited range of motion. He was referred to the
doctor on duty who ordered x-rays of the finger. He was transported that same
day to the Medina Memorial Hospital for the x-rays, which revealed an oblique
fracture involving the shaft of the proximal phalanx of the fifth digit.
According to the x-ray report, the fracture fragments were in good position
Report of Inmates Injury, Exhibit 1).
Before leaving Medina Memorial Hospital, Claimant's fifth finger was
re-splinted and "buddy taped" to the fourth finger. He was advised to remove
the splint only to shower. Claimant was seen at the Medina Memorial Hospital
for a follow-up visit on September 16, 1998. Again, it was noted that the
fracture was in good alignment. He was re-splinted, told to follow the protocol
given on September 10 and advised to be seen again in three weeks.
Claimant was not seen or treated again, however, until October 26, 1998, and
then on November 16, 1998, both times at the Orleans infirmary. During the
latter visit, it was noted for the first time that Claimant was unable to bend
his finger (Exhibit 1).
Another x-ray was ordered on December 1, 1998, and taken on December 9, 1998.
The x-ray report noted that the fracture was minimally displaced with some
evidence of internal callus formation, but no significant evidence of external
callus formation (Exhibit 2). During this time, Claimant was participating in
an occupational therapy program conducted at Attica Correctional Facility. On
February 3, 1999, upon returning from a therapy session, Claimant was referred
to a doctor for a consultation which occurred on February 22, 1999.
Unfortunately, it is difficult to read the doctor's notes, but it appears that
it was recommended that Claimant be added to the hand clinic held at Wende
Correctional Facility (Exhibit 2).
On March 12, 1999, Claimant was seen by Dr. Soliman, who noted that Claimant
had "developed increasing stiffness at the PIP and DIP joint " and that he was
"unable to make a satisfactory fist." Dr. Soliman recommended physical therapy
twice a week to improve range of motion (Exhibit 2, p. 5). On April 30, 1999,
Claimant was complaining of pain and decreased range of motion. A PIP splint
was constructed and Claimant was given exercises to perform. Claimant next saw
Dr. Soliman on May 28, 1999. On clinical examination, he noted that the
fracture had healed with good alignment. He further noted that the Claimant
could make a satisfactory fist, but that there was a small amount of stiffness
at the PIP and DIP joints. He discontinued the use of a splint and recommended
a range of motion rehabilitative program (Exhibit 2, p. 6). Finally, on July 9,
1999, the plan was to refer Claimant to a hand specialist because he had not
benefitted from either occupational or physical therapy (Exhibit 2, p. 10). This
was the last notation in the medical records provided to the Court.
Claimant testified at trial that he was unable to completely bend his finger or
make a satisfactory fist. Upon being released from prison, however, Claimant
was able to secure a job as a pipe insulator with the Eastman Kodak Company.
At the conclusion of Claimant's testimony, Claimant rested and the State moved
to dismiss the claim for failure to prove a prima facie case of medical
negligence or medical malpractice with respect to the State's care and treatment
of the Claimant. Decision on the State's motion was reserved at trial.
It is well settled that the State has a duty to provide its inmate population
with adequate medical care (
Kagan v State of New York
, 221 AD2d 7). Whether the claim is couched in
terms of negligence or medical malpractice, Claimant has the burden of proof.
In a medical malpractice action, Claimant has the burden of proving that the
medical provider deviated from accepted standards of medical care and must prove
a nexus between the deviation and the injury claimed (Rossi v Arnot Ogden
, 268 AD2d 916, lv denied
95 NY2d 751; Fridovich
, 188 AD2d 984; Macey v Hassam
, 97 AD2d 919). To make a prima
facie case of medical malpractice, Claimant is required to present expert
medical testimony (Duffen v State of New York
, 245 AD2d 653, lv
91 NY2d 810). In a medical negligence case, however, the alleged
negligent acts do not involve a matter of medical science, are readily
determinable by the trier of fact based on common knowledge, and no expert
medical testimony is required (Matter of Barresi v State of New York
The thrust of Claimant's trial testimony seemed to be that the staff of the
Orleans Correctional Facility should have ordered an x-ray of his finger when he
first appeared at the infirmary on September 5, 1998 following his football
injury. Claimant's medical records (Exhibits 1 and 2) contained several
notations that Claimant had not been taken to the hospital for x-rays until five
days after the accident. These same records revealed, however, that the same
splinting, was continued by the hospital even after x-rays were
taken and the fracture was discovered. On this record and Claimant's testimony
alone, I cannot conclude that the treatment provided by the infirmary
constituted medical negligence or malpractice. The resolution of this issue
necessarily depends on whether the infirmary's treatment deviated from
acceptable standards of care and whether the five-day delay in discovering the
fracture prevented the finger from healing faster and/or more satisfactorily.
This issue is clearly outside the common knowledge of this Court. Thus, whether
Claimant's claim is couched in negligence or malpractice terms, expert medical
testimony was necessary to sustain a recovery (Duffen v State of New
; Wells v State of New York
, 228 AD2d 581).
Accordingly, I must conclude that Claimant failed to meet his burden of proving
a prima facie case and grant the State's motion to dismiss raised at the
conclusion of Claimant's proof.
All other motions upon which decision was reserved at trial are now denied as
moot in light of this decision.
LET JUDGMENT BE ENTERED ACCORDINGLY.