New York State Court of Claims

New York State Court of Claims

RAMIREZ v. THE STATE OF NEW YORK, #2004-016-081, Claim No. 105580


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):

Alan C. Marin
Claimant's attorney:
Ernesto Ramirez, Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Michael Danaher, Esq., AAG
Third-party defendant's attorney:

Signature date:
January 5, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the trial of the claim of Ernesto Ramirez, which was held at Sullivan Correctional Facility. Mr. Ramirez testified on his own behalf, with Correction Officer Sotomayor acting as a Spanish-English interpreter. Defendant called nurse Dorothy O'Keefe, Lieutenant Joseph Beatty and Correction Officer Neil Terwilliger.

Ramirez's claim alleges as follows:
On 10[1] November 2001, approximately 10:30 P.M., at Woodbourne Correctional Facility
. . . claimant was injured on the D-Block, first floor stairs area. As claimant was being escorted by two correction officers, from the D-1 Housing Unit to the facility's clinic, claimant experienced a dizzy spell, missed a step of the stairs and tumbled down the stairs, which left claimant unconscious and seriously injured.
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As set forth more fully below, although the claim refers only with the November 9, 2001 fall, Ramirez's trial testimony covered a number of medical problems from which he suffers.[2]

Claimant stated that on November 9, 2001 at 10:30 p.m., while at Woodbourne Correctional Facility, he had an "emergency pain" in his stomach and testicles, so he called a correction officer. Lieutenant Beatty responded and Ramirez told him that he was in pain. Beatty called the nurse on duty who, according to claimant, did not want to come see him. Claimant recalled that Beatty then said he would get two officers to take claimant to the nurse's station, warning claimant that "if you don't have anything, I'm going to lock you up."

Ramirez recounted how two correction officers came to his cell, where he was in his bed screaming in pain, and had him come out to walk to the medical unit. Claimant said he used a cane, which had been provided to him for back pain. He recalled that as he proceeded to the medical unit with the officers, he was bending over in pain and could barely walk, but kept trying. As they went down the stairs, he got dizzy, "felt like [he] was drunk," and fell. On cross-examination, Ramirez stated that the officers could not prevent the fall because it happened so quickly.

Claimant continued that after his fall, he did not lose consciousness, and was on the floor screaming that his ear hurt. His left foot also hurt: "It felt like a scratch." According to Ramirez, a nurse and sergeant ran toward him and they called for an ambulance, which came and took him to an outside hospital. Meanwhile, he was in "excruciating pain." He testified as follows as to his treatment at such hospital. His head and neck were checked and found to be "ok" except for a "little bump." In addition, a catheter was inserted in his penis and he was told he had an infection that needed to be drained. He was given morphine and in three or four hours, felt better. After being treated, he left the hospital with the catheter and a bag, and was taken to Sullivan Correctional Facility, where he was treated for three days and was then sent back to Woodbourne.

Ramirez testified that after his fall, he started to get "bad symptoms" for which he was given pain medication. He added that as of the time of trial, he could not walk for long distances or sit for too long. When he goes to the yard or the tv room, he has to lie down because of the pain.

He also testified that he had surgery for hemorrhoids and thereafter, on August 8, 2002, suffered from bleeding. He said that he was treated for this and was told it was from the surgery. He also testified that at some point, he was sent to Upstate Correctional Facility, where he got "good treatment" for constipation and hemorrhoids and had two CAT scans, but did not indicate what they were for. He added that he saw three or four specialists while at Upstate, but did not elaborate, other than to say he has a tumor on his back, as to which it is "too dangerous" to operate. Finally, claimant said that he is now at Clinton Correctional Facility, where he is being given medication for his back pain, which he has had since 1999.

On cross-examination, claimant conceded that he had had back problems prior to his November 9, 2001 fall, had repeatedly gone to the medical unit for such problems, and had been given a TENS unit for his back pain prior to the fall. He also conceded that he had other medical problems prior to the accident, for which he had received treatment.

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Nurse Dorothy O'Keefe testified that she had worked at Woodbourne for 13 years, always on the 11:00 p.m. to 7:00 a.m. shift. She knew Ramirez, as she had seen him quite a few times when he was not feeling well. She described him as having a "multitude of complaints" prior to November 9, 2001, such as headaches, stomach problems and back pain.

Nurse O'Keefe reviewed claimant's Ambulatory Health Record for November 9, 2001 and said that she had made an entry at 2:00 a.m. that day (
i.e., early in the morning before claimant's later 10:30 p.m. fall). Asked what happened at that time, she stated that she received a telephone call from a correction officer who told her that claimant could not walk and was in pain. An officer then came to accompany her to claimant's cell, where he sat up in the bed and started talking loudly, stating that his testicles and penis hurt. According to O'Keefe, claimant began throwing pills from a bag, complaining that no one was doing anything to take care of him and demanding that something be done immediately. O'Keefe said she tried to explain to claimant that his back pain was chronic and that she could not do anything else until he saw the doctor, whom she would arrange for him to see as soon as the doctor arrived at approximately 8:00 a.m.
O'Keefe described claimant's behavior as "very loud and abusive," and said he was getting up and taking things out of his locker and yelling. He told her that he had already taken four ibuprofen pain tablets, so she removed the remaining ibuprofen from his cell, because it could hurt his stomach if he took any more.

Nurse O'Keefe testified that claimant's medical records show that he was treated by the doctor some time after 8:00 a.m. on November 9
th, prior to seeing a psychologist at 12:30 p.m. that day. She also stated that at 10:30 p.m. that night, when claimant fell, there was a "green dot" and he was taken to an outside hospital. She was there when the ambulance took him out and she also communicated with the emergency room nurse and provided information to the Sullivan Correctional Facility, where he was taken after he left the emergency room.
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Lieutenant Joseph Beatty testified that he was the watch commander on November 9, 2001 during the 2:30 p.m. to 10:30 p.m. shift. At 10:20 p.m. that night, while making his final round, another officer told him that Ramirez was in discomfort. According to Beatty, he went to claimant's cell where he found Ramirez moaning and complaining that he was in pain and not getting medication. Beatty testified that he then called the medical unit and the nurse on duty told him that Ramirez had already been given pain medication and could not be given any more. Beatty asked if the nurse would see claimant and asked claimant if he could walk over. According to Beatty, claimant said he was able to walk and appeared able to do so, so he called for two other correction officers to escort claimant to the medical unit. Finally, Beatty denied that he threatened to lock claimant up.
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Correction Officer Neil Terwilliger testified that on November 9, 2001, at about 10:30 p.m., he was requested by Lieutenant Beatty to escort Ramirez to the medical unit with another officer, who let claimant out of his cell. They proceeded down the gallery to the stairs and when claimant reached the second step, he fell. At the time, Terwilliger was three to four feet behind claimant. Terwilliger said that claimant gave no indication that he could not walk and was treated the same as any other inmate when being escorted. After the fall, the medical unit was called.
* * *
The State must use reasonable care to protect inmates from the foreseeable risk of harm. See,
e.g., Sebastiano v State of New York, 112 AD2d 562, 491 NYS2d 499 (3d Dept 1985). But the State is not an insurer and negligence cannot be presumed from the happening of an accident. See, e.g., Colon v State of New York, 209 AD2d 842, 620 NYS2d 1015 (3d Dept 1994). In this case, there was no evidence that Ramirez's fall was foreseeable or that defendant failed to adequately respond; as set forth above, Ramirez himself stated that it happened too quickly for the correction officers to prevent it. In fact, claimant did not even present any theory as to negligence on the part of the State.
As to Ramirez's medical treatment, "[i]t is well settled that the State owes a duty to its incarcerated citizens to provide them with adequate medical care."
Kagan v State of New York, 221 AD2d 7, 8, 646 NYS2d 336, 337 (2d Dept 1996). Even assuming that Ramirez's medical care was directly put at issue in this case, he failed to present any expert testimony that accepted standards of medical care were varied from. See, e.g., Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814, 681 NYS2d 475 (1998). For the foregoing reasons, claim no. 105580 is dismissed.

January 5, 2005
New York, New York

Judge of the Court of Claims

  1. [1]Although the claim refers to November 10, 2001, the testimony and documents introduced at trial made clear that claimant's fall in fact occurred on November 9, 2001.
  2. [2]In that regard, Ramirez stated that he had made copies of 512 pages of medical records that he had been unable to bring to trial and a discussion was had as to whether he should be permitted to submit them at a later date. Upon a review of the record, I find that claimant has made no showing that such documents would be material or relevant to this claim; defendant's exhibit A, which consists of medical records, includes his Ambulatory Health Records for the date in question, November 9, 2001.