New York State Court of Claims

New York State Court of Claims

WALKER v. THE STATE OF NEW YORK, #2004-029-424, Claim No. 104261


Synopsis


Prisoner; the Court finds State was negligent in failing to send claimant for his semi-annual ocular prosthesis cleaning. Court awarded claimant $1,000 for pain, irritation and itchiness.

Case Information

UID:
2004-029-424
Claimant(s):
LIONEL WALKER
Claimant short name:
WALKER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104261
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant's attorney:
Lionel Walker, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 1, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This claim, by a
pro se inmate, alleges defendant's medical personnel at Fishkill Correctional Facility (hereinafter Fishkill) rendered negligent medical care to claimant. The trial of this claim was held at Fishkill on August 6, 2004.
Claimant established that he was incarcerated in February, 1987. Prior to his incarceration, he lost his right eye but had an ocular prosthesis in the socket which required regular and consistent cleaning and reconditioning. Claimant testified that he sought regular treatment of his prosthesis while in the custody of the Department of Correctional Services (hereinafter DOCS) and received such treatment every six months through January, 2000.

Exhibit 1 contains copies of DOCS Requests and Reports of Consultation which establish that claimant's prosthesis was cleaned in June, 1998, December, 1998 and July, 1999. Exhibit 1 also contains several pages of claimant's Ambulatory Health Record (hereinafter AHR) establishing that on July 14, 2000 Mr. Walker went to the infirmary stating his right eye socket was itchy and his prosthesis needed its semi-annual cleaning. He returned on July 21, 2000 complaining about the prosthesis. On August 4 and August 21, 2000 he went to the clinic inquiring when the prosthesis would be cleaned. On August 24, 2000 he returned to the clinic complaining that his right eye socket was painful. An AHR entry, dated November 20, 2000, notes that Mr. Walker reported he missed a November 17, 2000 ophthalmologist appointment to have his prosthesis cleaned because he arrived late, after the correction officer driving got lost. The notation also records that claimant complained of substantial irritation in his right eye socket and a great deal of itching behind the prosthesis.

State's Exhibit A is a copy of a DOCS Request and Report of Consultation dated December 19, 2000. The consultation report relates that Dr. Mark Giglio examined Mr. Walker and the prosthesis. His examination indicated the need for routine cleaning and reconditioning of the prosthesis. At the conclusion of claimant's case, the State rested.

To maintain an action for injuries sustained while under the care and control of a medical practitioner, a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice (
Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). The theory of simple negligence is restricted to those cases where the alleged negligent act is readily determinable by the trier of the facts on common knowledge. However, where the treatment received by the patient is an issue, the more specialized theory of medical malpractice must be followed (see Twitchell v MacKay, 78 AD2d 125; Hale v State of New York, supra).
Claimant did not present any testimony from a medical expert. However, the Court concludes that the theory asserted herein is not medical malpractice but simple negligence which can be determined by the trier of fact on common knowledge. Claimant established by a preponderance of the credible evidence that his ocular prosthesis required cleaning every six months and that DOCS had followed this schedule for a number of years. Claimant established that he had the prosthesis cleaned in January, 2000 and that the next cleaning was not until December, 2000. Therefore, the cleaning in July, 2000 was not performed. Claimant testified, without contradiction, that when the prosthesis got dirty his eye socket became irritated and itchy.

Based upon a preponderance of the credible evidence presented at trial, the Court finds that the State failed to have claimant's ocular prosthesis cleaned in July, 2000 and that such failure resulted in pain, irritation and itchiness to claimant's right eye socket from July to December, 2000. Given the documented prior knowledge of the defendant, this failure to perform a routine and long established medical procedure is simple negligence (tantamount to a ministerial function) within the common knowledge of the Court without the need for expert testimony. The Court finds claimant suffered damages approximately resulting from defendant's negligence and is entitled to an award in the amount of $1,000 for the needless pain, irritation and itchiness of his right eye socket. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act Section 11-a (2).

The Chief Clerk is directed to enter judgment in accordance with this decision.


September 1, 2004
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims