New York State Court of Claims

New York State Court of Claims

LITTLEJOHN v. STATE OF NEW YORK, #2004-018-311, Claim No. 99410


The claim is dismissed. There is nothing linking Defendant's care of Claimant with the development of a bone spur or other degenerative changes in Claimant's ankle or back. Further, there is no proof anything the State did or failed to do caused Claimant's injury.

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):

Claimant's attorney:
Arnold S. Kronick, Esquire
Defendant's attorney:
Attorney General of the State of New York
By: Patricia M. Bordonaro, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

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 shoes.[1]
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Claimant was arrested for a parole violation in March 1997, and his parole was revoked on May 21, 1997, which decision was affirmed on June 2, 1997.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).[2]

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 Claimant.

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, 1997.[3]

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 form[4]
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[5]
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 regulations,[6]
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 reception center,
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 Downstate.

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 assignment:

Claimant arrived at Riverview on July 9, 1997, where he remained until he was discharged from the State system on December 26, 2001.[7]

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 Riverview[8]
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.[9]
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[10] in his right ankle, and an x-ray revealed sclerosis.[11] During that visit, Claimant complained that the pain was worse, and it was determined he needed new orthopedic boots. At that time,[12] Claimant's 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, 1998.[13]
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.[14]
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.[15]
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 pain.
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 first.[16]
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, 2000.
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 Claimant
did not complain of right ankle, left leg and lower back pain.
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 written down.

In addition to his regular appearances at sick call, Claimant also filed several grievances.[17]
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 boots.

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 thereto."[18]
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 boots.[19] 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, 201 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 boots.
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 York, 164 Misc 2d 783; Jackson v State of New York, 2001 WL 1725845).
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 frequency.[20]
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 back.
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.

June 30, 2004
Syracuse, New York

Judge of the Court of Claims

[1]Exhibit A and 8.
[2]See Exhibit 3.
[3]Claimant was considered in transit until he arrived at Riverview, his permanent assignment.
[4]Exhibit B.
[5]See Exhibit 12. Claimant maintained that Exhibit 11, dated June 16 (the year on this exhibit is obscured) was the initial medical assessment done at Downstate after his parole revocation. The form indicates Claimant may need special shoes due to his ankle fusion. Initially, the State stipulated that the form was completed in 1997; however, upon further review, the State questioned the year it was completed. Reviewing Exhibit O, the Chronological History Display for Claimant's location during each period of incarceration, it shows Claimant being received back into State custody at Downstate after his parole revocation on June 18, 1997, which would preclude a medical assessment on June 16. Exhibit 11 could not have resulted from a 1997 medical assessment two days before Claimant was in State custody, but must have been created when Claimant was previously at Downstate Reception Center from June 6, 1988 through August 24, 1988. The form is essentially the same as Exhibit 12, dated June 26, 1997. Additionally, Exhibit 11 is contained in Exhibits A and 8 with other documents from June 1988. Therefore, the Court finds that Exhibit 11 was prepared in 1988, not 1997, and that Exhibit 12 is the medical assessment, dated June 26, 1997, for Claimant's incarceration for his parole revocation.
[6]Exhibit 16.
[7]Exhibit O indicates he was moved to Downstate from February 2, 2001 through February 3, 2001. This was the only other facility Claimant was in after July 9, 1997.
[8]This infirmary visit note is dated May 9, 1997, however, the Court finds this date was in error because it refers to Claimant being received at Riverview, which did not occur until July 9, 1997.
[9]Claimant received Motrin and Naprosyn for pain on a regular basis at Riverview. This was for his ankle and other complaints, such as headaches.
[10]The surgical immobilization of a joint so that the bones grow solidly together (Merriam-Webster Medical Desk Dictionary 56 [1986]).
[11]A pathological condition in which tissue has become hard and which is produced by overgrowth of fibrous tissue and other changes or by increase in interstitial tissue and other changes (Merriam-Webster Medical Desk Dictionary 728 [1986]).
[12]See Exhibit I.
[13]Claimant also made complaints on this day and other infirmary visits of left leg pain or left knee pain several times but no cause for the pain was noted.
[14]An insert was placed in his left shoe to assist with the fit.
[15]The medical records show numerous other sick call visits without ankle pain complaints while Claimant was at Riverview. He often had more than one complaint on sick call visits.
[16]Although Claimant has the right to have his attorney review any documents and forms before he signs them, this delay is not the State's fault. Northern Orthotics and Claimant are responsible for the delay.
[17]Exhibits E, F, G, H, and 6.
[18]Claim, paragraph 6.
[19]Claimant did not receive a new brace until April 27, 2000.
[20]Claimant testified that the orthotic boots helped alleviate the pain, but the records belie that statement. Furthermore, there is no causal connection between the lack of orthotic boots and the left leg and back pain. Claimant has bullet fragments in his back and an x-ray showed arthritic changes in his back. In any event, Claimant's testimony alone is not sufficient to establish the malpractice or negligence of the State.