Claimant seeks damages as a result of the State's alleged negligence in failing
to timely provide medically prescribed orthopedic boots which properly fit,
while he was incarcerated at Riverview Correctional Facility (hereinafter
Riverview). Claimant's second cause of action is for failing to timely obtain
his ambulatory health records from his prior State incarceration.
At trial, Claimant testified that his right foot was injured when he dropped
from the second story of a building onto a curb. On May 17, 1985, he underwent
bone fusion surgery. In 1986, he was arrested; and thereafter, in 1988, he
began to serve a 7½- to 15-year sentence in the State system.
When he began that period of incarceration at Downstate Correctional Facility
(hereinafter Downstate), it was noted in his medical records upon his arrival on
June 6, 1988, that Claimant required special
An ace wrap was issued to help support his right foot, and he was given a pass
allowing Claimant to retain his "street" shoes until further information could
be obtained. According to Claimant, he received orthopedic boots in 1990 and
again in 1993 while in prison. These boots had steel shanks which Claimant
needed, and he received a permit to possess them while incarcerated. He had the
boots he received in 1993 when he was paroled in the fall of 1996.
Claimant was arrested for a parole violation in March 1997, and his parole was
revoked on May 21, 1997, which decision was affirmed on June 2, 1997. On June
18, 1997, Claimant was returned to State custody and was received at Downstate
as a Return Parole Violator (RPV).
Claimant testified that he was wearing the State-issued orthopedic boots when
he was rearrested, and that he still had possession of them when he arrived at
Downstate, despite the fact that he was not allowed to use them while in the
Westchester County jail. As part of the State intake process, an inmate must
relinquish his street clothes with the option to send them home, donate them, or
have them destroyed. This process was confirmed at trial by James O'Connell,
currently the Superintendent of Ulster Correctional Facility, who was called as
a witness by the State. Claimant said, despite his requests to keep his
orthopedic boots, and despite the fact that the boots had been obtained by the
State for Claimant, he was required to dispose of them. The Downstate
Correction Officer processing Claimant's reception told him to take it up with
the next facility. The next day, Claimant was sent to Elmira Correctional
Facility (hereinafter Elmira) to complete the intake process.
Mr. O'Connell, who in 1997 was Deputy Superintendent at Downstate, testified
that at that time local facilities downstate who had inmates sentenced to State
facilities to serve their time would notify his department of the inmates' names
and status. Downstate would then schedule an intake date for specific
individuals. At that time, Downstate was taking men in and sending them to
Elmira for processing the next day to help alleviate the backlog of State
inmates in local facilities. This is, apparently, what occurred with
While at Downstate, Claimant could not recall speaking with any medical
personnel, but he did tell someone at Elmira that he needed orthopedic boots.
From Elmira, Claimant went to Auburn Correctional Facility, but he did not tell
anyone there about the problems with his feet. Claimant was then sent to
Watertown Correctional Facility (hereinafter Watertown) where he told personnel
about the problems with his feet and his need for special footwear. Claimant
was assigned to a lower bunk at Watertown as a result. He received the same
treatment at Riverview when he arrived there on July 9,
According to Mr. O'Connell, every incoming inmate has a medical transfer
information form which should contain medical information to assist the State in
maintaining an individual's continuity of care. He reviewed the
which accompanied Claimant on June 17, 1997, and noted that there was no
reference to orthopedic boots. The form contains an area at the bottom where
such information should be included.
Additionally, Mr. O'Connell testified that during the initial intake process,
legal and medical personnel are available for consultation. After the initial
intake, an inmate would be given a medical assessment; in Claimant's case it
occurred at Elmira
on June 24, 1997 through June 26, 1997. The only reference to Claimant's foot
problems from that assessment is that his right ankle was causing him pain.
Nowhere on the assessment form is there mention of orthopedic boots or special
footwear. Either Claimant never told the medical personnel about his need for
boots or it was not documented.
When questioned about whether or not Claimant would be allowed to keep his
orthopedic boots upon his return to the State system, Mr. O'Connell noted a
determination would be made based upon medical necessity and whether the item
could pose a security threat. Mr. O'Connell testified that often inmates'
personal wheelchairs are denied, and they are replaced with a State-issued
chair. Prescriptions are also discarded and reissued by the State. In other
words, both medical necessity and security issues are involved, and it would be
an extraordinary situation for an incoming inmate to be allowed to retain a
personal item not usually allowed in the prison system. Mr. O'Connell testified
that the State medical staff's judgment controls the decision.
When asked about the response of the intake personnel to inmates' statements of
medical needs, Mr. O'Connell said that emergent issues such as dialysis or
chemotherapy would be handled immediately, but any non-emergency situations
would be held until the next facility. He emphasized that the State is
responsible for the continuity of the inmates' medical care based upon the
judgment of the facility's medical staff. Also, he said that the inmates' needs
and condition at the time of arrival are assessed; the inmates' past medical
needs do not control.
On cross-examination, Mr. O'Connell was asked about the applicable
specifically 9 NYCRR § 7651.9(c) which reads:
All inmates who, as determined by the facility medical
director, are exhibiting significant abnormal health assessment
findings with clinical correlation shall be evaluated for
differential diagnosis in a timely fashion at the
or at a facility expressly designated for the
evaluation of inmates
under extended classification procedures (emphasis added).
There is no evidence Claimant was seen by the Downstate medical director;
however, the Court finds that based upon Claimant's medical assessment he was
not exhibiting "significant abnormal health assessment findings" while at
Using Claimant's testimony, medical records, grievances, and the testimony of
Thomas Hunter, Riverview Nurse Administrator, and that of Rebecca Fiacco,
Riverview's Deputy Superintendent of Administration, the Court finds that the
following events occurred after Claimant arrived at his permanent
Claimant arrived at Riverview on July 9, 1997, where he remained until he was
discharged from the State system on December 26,
A medical review completed in transit reflects Claimant's medical condition and
refers to a doctor's appointment on August 21, 1997. There is no mention of his
bone fusion or ankle pain. Claimant's first medical note at
mentions right ankle pain. Claimant, at that time, was assigned to a lower
bunk. Claimant next attended sick call on August 13, 1997, complaining of right
ankle pain, and the record mentions that Claimant's orthopedic boots were taken
because they had steel shanks. He was also referred to a doctor at that time,
but there were no notes from an appointment. Claimant attended sick call on
September 16, 1997 and October 22, 1997, complaining of right ankle pain. He
was referred to Dr. Sass for evaluation on November 20, 1997.
On November 28, 1997, Dr. Sass requested Claimant's earlier medical records for
review. It was his impression that Claimant was suffering from arthritis in his
right ankle at that point in time.
On January 30, 1998, Claimant had another doctor's visit; the record indicates
Claimant's prior records still had not been received. Claimant still
complained of pain. In April 1998, Claimant was sent for x-rays and scheduled
to see Dr. Sass regarding his ankle. Dr. Sass' examination on April 23, 1998,
indicated Claimant had arthrodesis
right ankle, and an x-ray revealed
During that visit, Claimant
complained that the pain was worse, and it was determined he needed new
orthopedic boots. At that time,
records had been received and reviewed by Dr. Sass who referred him to an
orthotist for orthopedic boots. As a result of the referral, Claimant was seen
at Mills Orthotic Lab on May 12, 1998, where it was determined that, to provide
the needed stability, a custom-made brace to fit inside orthopedic boots would
be best. On May 22, 1998, the lab fit Claimant for the boots and held the brace
at that time until the boots were received. Size 9½ boots to fit the
brace were ordered the same day.
Claimant returned to Mills Orthotic Lab on July 9, 1998, and refused the boots
and brace. They were sent to the facility in case Claimant changed his mind.
The orthotist noted that Claimant was so belligerent he could not tell if the
boots and brace would benefit him.
Mr. Hunter, the Nurse Administrator at Riverview, testified for the defendant
and recalled that Claimant did not like the boots because they did not have
enough tread. In his undated nursing note, Mr. Hunter said that Claimant had
tried on the boots and brace and claimed they hurt, but never tested them.
Claimant said the brace hurt his leg and ankle.
Claimant returned to sick call, complaining of ankle pain on July 23,
In August 1998, Claimant accepted the boots and braces but later complained that
the boots did not fit. The boots were larger than Claimant's feet to
accommodate the brace that fit inside them.
On August 7, 1998, Claimant went to sick call complaining about the
new boots making his leg "burn." He returned on August 25, 1998, again
complaining about the improper fit of his boots. Claimant went to sick call on
September 17 with complaints of pain and saw the doctor on October 2, 1998.
At sick call on October 16, 1998, it was noted Claimant needed ankle support.
On October 22, 1998, the records indicate Mr. Hunter gave Claimant permission to
wear special orthopedic boots that fit his foot size but could not accommodate
the brace. These new boots were supplied by Mills Orthotic Lab. Claimant also
received elastic ankle braces to wear with these boots.
Claimant complained of ankle pain again on November 13, 1998 and on December 4,
1998, when he saw a doctor. The notation says the pain was due to arthritis.
On January 6, 1999, Claimant went to sick call with ankle pain and requested a
doctor. Claimant saw the doctor on January 10, 1999, still complaining of pain.
He complained of pain to the nurse on March 19, 1999, and to a doctor on April
2, 1999. On May 27, 1999, Claimant was given an ankle brace for support. On
June 22, 1999, Claimant requested a work modification due to his ankle fusion
but did not receive it. Claimant was at sick call on June 30, July 9, and July
23, 1999 due to right ankle pain.
On August 4, 1999, Claimant had a doctor's visit that needed to be rescheduled.
On August 11, 1999 and August 25, 1999, Claimant complained of clicking and
grinding in his right ankle. He returned to sick call on September 1, 1999 and
saw Dr. Palao on September 3, 1999. Dr. Palao continued Claimant's
prescription for Naprosyn. Claimant continued to complain about right ankle
On September 30, 1999, Claimant was referred to Northern Orthotics so he could
get new boots that would accommodate the brace. Claimant was seen at Northern
Orthotics on October 9, 1999 when it was determined that a new brace and
extra-depth boots would need to be made.
Claimant continued to complain of right ankle pain during sick call on October
22, 1999 and October 26, 1999, and he saw a doctor for the pain on October 28,
1999. The doctor noted that Claimant's complaints were being evaluated. On
November 9, 16, and 19, 1999, Claimant complained of right ankle, left leg and
back pain. Again, on November 30, 1999, December 3, December 10, December 14,
December 17, December 21, December 28, December 31, 1999, he complained of pain
in the right ankle, and/or left leg and back pain.
Claimant was referred to Northern Orthotics again on December 30, 1999, and
seen on January 14, 2000. Northern Orthotics required patients to sign a
consent/waiver form before work would be performed for them. Because Claimant
had commenced this action, he refused to sign the form during his appointment.
He wanted his attorney to see it
In March, Claimant signed the form and Northern Orthotics reviewed his
situation. The facility referred him for measurement and fit, and he was seen
by Northern Orthotics on April 13, 2000. At that time, the brace was fitted and
Claimant was measured for boots. On April 27, 2000, Claimant tried the boots
and brace at Northern Orthotics and they fit well. It was noted that Claimant
was very difficult to work with because he was uncooperative. On June 2, 2000,
the brace padding needed repair and it was returned to Claimant on June 9,
On March 5, 2000, Claimant was seen by the doctor because of grinding and
clicking in his right ankle; he was referred for x-rays. Claimant's complaints
of pain in his ankle, leg and/or back continued despite his on-going use of
Naprosyn. On March 22, 2000, the doctor noted that Claimant had degenerative
changes and spurring in his lower back and continued his medication.
Claimant complained of right ankle, left leg and/or low back pain during sick
call nine times between March 24, 2000 and April 27, 2000. The boots and brace
did not alleviate his complaints. Starting on April 28, 2000 through September
12, 2000, Claimant made the same complaints of pain 28 times. On September 12,
2000, the doctor found a protrusion on his right heel but did not recommend any
treatment at the time. On September 14, 2000, Claimant returned to sick call
with complaints of right ankle and heel pain. He requested and was given bunion
pads. From September 14, 2000 to October 30, 2000, Claimant made the same
complaint of pain at sick call 11 times. The nurse noted on October 10, that
complain of right ankle, left leg and lower back
Claimant saw the doctor on November 6, 2000, after a November 3, 2000 sick
call, and a bone spur was noted on his right heel. He was sent for x-rays and
referred to an orthopedic specialist by whom he was seen on November 28, 2000.
The doctor recommended excision but, on the day of surgery (December 13, 2000),
Claimant refused to have the spur removed. He testified that he did not want
general anesthesia. From November 6, 2000 to December 11, 2000, Claimant was at
sick call complaining of the same pain 10 times.
From the day Claimant refused surgery until his release on December 26, 2001,
he complained of pain in his right ankle, left leg and/or back 65 times. He
told the nurse on September 12, 2001, he just wanted his complaint of pain
In addition to his regular appearances at sick call, Claimant also filed
Rebecca Fiacco testified that the grievance process is used by inmates to bring
their problems or concerns to the administration. It is not meant to be an
adversarial procedure. An inmate first files his grievance outlining the
problem, then there is a hearing at the facility before two inmates and two
facility representatives. They make a recommendation, and if the recommendation
is not acceptable to the inmate, he can appeal to the facility superintendent.
He can appeal the superintendent's decision to the Central Office Review
Committee (CORC) in Albany.
Claimant's grievances were filed on September 21, 1998, October 23, 1998,
October 6, 1999, and January 4, 2000. The primary underlying complaint for the
first two was a lack of proper medical treatment by Nurse Hunter. The efforts
made by the facility to obtain orthopedic boots for Claimant is outlined in the
documents. The third grievance complained of Nurse Hunter's refusal to classify
Claimant as medically unemployable but also contained complaints of substandard
orthotic boots. The fourth complaint focused on the waiver form required by
Northern Orthotics, as previously discussed. The documents substantiate
Claimant's testimony that, at least since midyear 1998, he complained regularly
about the lack of medical treatment and his need for properly fitted orthopedic
In the claim, the first cause of action alleges the "negligence of the State of
New York, its officers, agents, servants and/or employees, in their negligent
handling of claimant's medical needs, without any acts of negligence on the part
of the claimant contributing
The underlying negligence involved the State providing Claimant with substandard
and improperly fitted orthotic boots and brace on July 9, 1998, which was not
corrected until October 22, 1998, when Claimant received new
The claim asserts that Defendant
provided inadequate medical care and willfully deviated from acceptable and
established medical practice causing the claimant further injury.
The second cause of action contains allegations of negligence for an
unreasonable delay in obtaining Claimant's medical records and files.
Specifically, it states that Claimant arrived at Riverview on July 10, 1997, and
that he told medical personnel there about his bone fusion and his previously
prescribed orthopedic boots. It continues that the records were received on
April 23, 1998, and that Claimant was not seen by a specialist until July 9,
1998. The claim was filed on December 3, 1998 by Claimant, pro se.
Addressing the second cause of action first, and assuming the claimant alleges
a continuing wrong, the accrual date for this cause of action would be the date
the medical records were received. Although the specific date the records were
received is not clear, Dr. Sass did have Claimant's prior medical records by
April 23, 1998. The claim for failure to promptly obtain Claimant's medical
records is untimely pursuant to CCA § 10(3-a) as no Notice of Intention was
served within 90 days of the date of accrual, and the claim was not filed until
December 3, 1998. Even if the Court uses a later accrual date, the first date
Claimant saw a specialist (May 12, 1998) or July 9, 1998, the date Claimant
received his first pair of boots and brace, the claim is untimely. The
defendant preserved this objection with particularity in the Answer (Court of
Claims Act § 11[c]).
Turning to Claimant's first cause of action, Claimant's post-trial brief denies
any medical malpractice cause of action, yet both the claim and the post-trial
brief argue that the State failed to provide adequate medical treatment and
deviated from the standard of care. Typically, to establish a deviation from
the standard of care and to prove inadequate treatment, expert medical testimony
is necessary, unless the alleged wrongdoing can be assessed with the common
knowledge of the fact finder without expertise (
Bloom v City of New York,
202 AD2d 465; Smith v Pasquarella,
AD2d 782; Arias v State of New York,
195 Misc 2d 64, 70). Thus, a
distinction is drawn between wrongdoing which arises out of medical treatment or
bears a substantial relationship to the rendition of medical treatment involving
special skills or knowledge, and conduct which can be judged based upon one's
everyday experience (Smith v Pasquarella, supra).
By example, the
failure to equip a bed with side rails after a doctor ordered the use of side
rails was considered negligence, while the failure to use the side rails in the
absence of a medical order was an issue of medical malpractice (Mossman v
Albany Med. Center Hosp.,
34 AD2d 263; Coursen v New York
Hospital-Cornell Med. Center,
114 AD2d 254). Here, Claimant essentially
takes issue with 1) the delay in treatment (providing orthopedic boots), and 2)
the delay in obtaining properly fitting orthopedic
In order to determine whether there was an improper delay in evaluating
Claimant and referring him to an orthotist which deviated from the standard of
care, the Court needs expert testimony to establish what the standard of care is
and how Defendant's conduct deviated from that standard. Evaluating Claimant's
condition upon his arrival at Downstate, and addressing his ongoing complaints
of pain involve questions of medical science and appropriate medical care,
matters which are not within the common knowledge of the Court. The undisputed
testimony of Defendant's employees, Mr. Hunter, Ms. Fiacco, and Mr. O'Connell,
established that an incoming inmate's medical condition and needs are assessed
upon arrival at the facility and thereafter by the facility's medical staff, and
treatment and care are based upon these assessments. Just because an inmate
required a specific treatment for a condition during a prior incarceration is
not going to automatically authorize the same treatment. Thus, a medical
evaluation upon re-incarceration determines what treatment an inmate receives
and the time frame in which the treatment is provided; and the Court is unable,
without expert testimony, to determine that Defendant failed to timely and
appropriately treat Claimant's right ankle pain.
The delay in obtaining properly fitting orthopedic boots was the result of an
improper fitting by Mills Orthotic Labs coupled with a lack of cooperation on
the part of Claimant, based upon the medical records and records from Northern
Orthotics. Any malfeasance of Mills Orthotic Labs cannot be imputed to the
State where other than the referral, transporting Claimant and payment, the
State had no involvement with the brace and orthopedic boots
(Rivers v State of New York,
159 AD2d 788; Williams v State of New
164 Misc 2d 783; Jackson v State of New York,
In any event, even if the Court found that Defendant had breached its duty of
care to Claimant, the Court has no evidence before it which would establish a
causal link between any delay in treatment or obtainment of medical records and
Claimant's condition. Claimant was provided with properly fitting orthopedic
boots and brace by April 27, 2000, yet Claimant's complaints of pain and
discomfort continued with increased
There is nothing linking Defendant's care of Claimant with the development of a
bone spur or other degenerative changes in Claimant's right ankle or
To the extent Claimant's claim can be construed to assert a cause of action for
ministerial neglect: a violation of a non-discretionary regulation, procedure or
protocol which results in injury to the claimant, the evidence does not support
such a finding (
Kagan v State of New York,
221 AD2d 7). There was no proof of a
violation of any non-discretionary protocol, procedure or regulation. However,
even if the Court were to find such a violation, there is no proof that anything
the State did or failed to do caused Claimant injury.
Therefore, the claim must be DISMISSED. LET JUDGMENT BE ENTERED