The claim herein was filed on October 8,
and alleges medical negligence and deliberate
Claimant asserts that the
medical staff at Orleans Correctional Facility (Orleans) failed to x-ray a
fellow inmate who had active tuberculosis; that when he first entered the
Department of Correctional Services (DOCS) he had been x-rayed and his results
were negative, but thereafter, upon testing after his arrival at Orleans, he was
found to be infected with TB, after living in the same dormitory as the infected
In essence, Claimant is alleging that when he entered DOCS he was tested
negative for TB, but that, after he was exposed to a fellow inmate who was
"infected" with TB, he tested positive for TB on July 22, 1998. Claimant also
vaguely alluded to limitations upon his movement, or what he characterized at
being quarantined, until such time as he was given a "PPD" test.
Claimant presented no testimony other than his own in support of his
contentions. The Defendant, however, produced Susan Lewis, a registered nurse
in the employ of the State of New York, who testified that facility authorities
at Orleans were advised on May 14, 1998, by medical personnel at Strong Memorial
Hospital in Rochester (Strong), that they had diagnosed a case of tuberculosis
in an inmate from Orleans. Nurse Lewis, a Regional Infection Control Nurse, had
been assigned to certain correctional facilities in Hub 7, including Orleans,
since 1992. She testified that on April 20, 1998, the other inmate had been
placed in isolation due to that inmate's complaints, and on April 23, 1998 he
was transferred to Strong. That inmate had tested negative for TB upon his
initial reception into DOCS, but due to his complaints, Orleans medical
personnel ordered an x-ray and ultimately transferred him to Strong for tests.
The infected inmate never returned to Orleans after April 23, 1998, the date of
his transfer to Strong.
According to Nurse Lewis, the other inmate had not exhibited "classic symptoms"
of TB, even as late as April 20, 1998. Nonetheless, some 280 inmates and
employees who might have been exposed to this other inmate were tested.
Generally utilizing a "PPD" test, the nursing staff is able to determine whether
an individual may have picked up a tuberculosis germ. Claimant was correct that
he had previously tested negative for the tuberculosis germ, and that during
this testing phase he tested positive. However, as Nurse Lewis testified, a
positive finding only showed that Claimant had a TB infection, but not the
disease. She added that a TB infection is not contagious, only the TB disease
is contagious. Claimant had "converted" to positive, and such converts
(individuals who initially tested negative but thereafter test positive) are
given an x-ray and monitored to see if they exhibit any symptoms. Inmates and
others are given a course or regimen of medications designed for such converts
to help prevent them from coming down with the disease.
It is this exposure and "conversion" to being tested positive for the TB germ
that Claimant asserts is the basis for his allegations of medical negligence and
deliberate indifference. The claim must be dismissed.
Claimant asserted in his bill of particulars that his exposure to the inmate in
question occurred between May 26 and July 22, 1998. He similarly testified at
trial as to the exposure between these dates. However, it is undisputed, and
unchallenged by Claimant, that the inmate in question was isolated on April 20,
1998, and did not return to Orleans after his transfer to Strong Memorial
Hospital on April 23, 1998. Accordingly, Claimant could not have been exposed
to the infected inmate during the period between May 26 and July 22, 1998,
because the other inmate was not housed at Orleans at that time. Thus there is
no factual underpinning to the Claimant's allegations.
Nonetheless, I will briefly address the legal issues pertaining to the
allegations of the claim. 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). Here no expert medical testimony was presented, and
indeed allegations sounding in medical malpractice were not
While the State is not an insurer of the safety of those confined to its
prisons, and actionable negligence cannot be inferred simply from the occurrence
of an injury, it is well settled that the State owes a duty to its incarcerated
citizens to provide them with medical care and treatment. This care must be
reasonable and adequate, as an inmate must rely upon the prison authorities to
treat and diagnose his/her medical needs (
Rivers v State of New York
, 159 AD2d 788, 789, lv denied
NY 2d 701; Gordon v City of New York
, 120 AD2d 562,
70 NY2d 839; Powlowski v Wullich
, 102 AD2d 575, 587,
[Hancock, J.], citing Jones v Diamond
, 636 F2d 1364, 1378).
Since this claim alleges medical negligence, then the alleged negligent
omissions or commissions by State caregivers can be readily determined by the
fact finder using common knowledge without the necessity of expert testimony.
However, this theory is limited to "those cases where the alleged negligent act
may be readily determined by the trier of the facts based on common knowledge"
(Coursen v New York Hospital-Cornell Med. Center
, 114 AD2d 254, 256).
Such cases have involved scalding a patient with a hot water bottle (Phillips
v Buffalo General Hospital
, 239 NY 188), leaving an electric lightbulb under
the sheets (Dillon v Rockaway Beach Hospital.
, 284 NY 176), leaving a
postoperative patient unattended in a bathroom (Coursen v New York
Hospital-Cornell Med. Center
, 114 AD2d 254, supra
), and other
I also cannot find from this record that the actions of the medical caregivers
amounted to negligence. The essence of this claim is that Claimant seems to
blame the Defendant because of his exposure to and infection with the TB germ,
but he has failed to establish even a single negligent act of commission or
omission by the Defendant. Indeed, the testimony by Nurse Lewis reflects the
Defendant's immediate and seemingly appropriate response to the exposure of
Claimant and some 279 other inmates and employees of the Defendant to the inmate
who eventually was found to have the TB disease. There is nothing in the record
before me which reflects anything but appropriate medical care, and certainly
allows no inference of deliberate indifference, indeed quite the contrary. The
only inference that might have been suggested occurred when Claimant asked Nurse
Lewis whether the other inmate had been denied medical treatment when he had
been coughing up blood. Her unchallenged and credible testimony was that there
was nothing in the medical records of the other inmate which revealed any
complaint or observation that he had coughed up blood, only that he was being
examined and treated for other unidentified medical conditions, which because of
confidentiality she would not disclose. Moreover, Claimant presented no proof
of any injury or damages which he sustained.
In sum, Claimant has failed to establish a
case (Mosberg v Elahi
, 176 AD2d 710,
80 NY2d 941; Wells v State of New York
, 228 AD2d 581
and Quigley v Jabbur
, 124 AD2d 398). At the conclusion of Claimant's
testimony, Defendant moved to dismiss the claim that could be construed as
sounding in medical negligence on the grounds that there was no proof of any
negligence on the part of the State. I reserved decision at that
The State's motion to dismiss is now granted and the claim is dismissed. All
motions not heretofore ruled upon are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.