Infinite Uhura Allah, the Claimant herein, alleges in Claim Number 101315 that
Defendant's agents failed to provide him with adequate medical treatment while
he was in the custody of the New York State Department of Correctional Services
(hereafter DOCS) at Green Haven Correctional Facility (hereafter Green Haven).
Trial of the matter was held on December 17, 2003.
Claimant testified that on December 4, 1997 he was admitted to St Agnes
Hospital for surgery on his left wrist and hand, because he had been suffering
from a "cyst and carpal tunnel
He indicated that he continued to complain of pain in his hand, but that his
complaints were ignored by Dr. Harry Mamis, his treating physician at Green
Haven. Dr. Mamis cleared him to work after "the first operation," his hand was
"in a cast, and then it blew up again." Claimant sought treatment repeatedly as
indicated on the medical "call-out" slips he submitted in evidence. [See
Exhibit 2]. In the same exhibit the Court notes that there are permit slips
issued by medical personnel directing, for example, Claimant's attendance at the
clinic for suture removal, application of dressings, and instructions concerning
showering and limitations due to his medical condition, among other things.
Claimant testified that he wanted to go back to the hospital, but
he "didn't go back to the hospital till four months passed, with . . . [him]
being given only Tylenol, Ibuprofens and Naprosen to reduce the
A review of the portions of Claimant's Ambulatory Health Record (hereafter AHR)
submitted in evidence shows that on or about May 13, 1997 Claimant was first
seen by medical personnel at Green Haven as an "incoming draft" from another
correctional facility. [Exhibit 20]. According to other parts of the record,
while he was at Elmira Correctional Facility, some time in March or April, 1997,
he had a septoplasty, presumably a surgery involving his nose, since the
indications on the consultation form mention that Claimant "can breathe better."
An entry from the AHR at Green Haven dated May 30, 1997 notes that claimant had
suffered an injury to his left wrist in 1994, and complained of pain.
. On June 9, 1997 he was seen by Dr. Mamis, who appears to have
examined his hand, noted that Claimant had a "boxer's fracture to left hand
1994," and referred him to an orthopedist.
Further examinations by medical personnel at Green Haven are noted on June 12
and 16, July 8, 11, 18 and 30, August 27, September 16 and 17, October 10, 16,
and 20, November 7, 21, 24, and 28, and December 3, 1997.
. There are requests for consultations and consultation reports
noted August 27, September 15, and October 29, 1997. [Ibid]
September 11, 1997 he was seen by a Neal R. Dunkelman, M.D., upon referral by
Dr. Mamis, to rule out carpal tunnel syndrome and conduct a nerve conduction
study. [Exhibit 12]. Dr. Dunkelman's clinical impression was that the claimant
suffered from "moderately severe left carpal tunnel syndrome." [Id]
There was a follow-up to that consultation in October, and another follow-up in
late November, 1997. [Exhibit 20].
Records from St. Agnes Hospital from December 4 and 5, 1997, confirm that
surgery was performed there on or about December 4, 1997, and discharge
instructions were given directing that Claimant's left hand be kept elevated,
that the sutures be removed in two weeks, that Claimant perform "active finger
exercises" and be given "Tylenol #3." [Exhibit 11].
After the December, 1997 surgery, the AHR reflects visits to medical personnel
at Green Haven on December 15, 17, 19, 27, 28 and 29, 1997. [Exhibit 20].
Visits during the first part of 1998 to medical personnel at Green Haven
occurred on January 2, 8, 12, and 28, February 5 and 13, March 3.
Although Claimant did not specify a date in his testimony, from the record it
appears he had a second surgery to his hand at St. Agnes Hospital on or about
April 3, 1998. [Exhibit 11]. Discharge instructions were again given with
regard to pain medication, movement of fingers, and the elevation of the left
After the April, 1998 surgery Claimant was seen by medical personnel on April
5, 6, 7,13 and 15, May 12 and 19, June 1, 2, 3, 5 and 25, July 23 and 27, August
18 and 25, September 2 and 8, October 20, November 5, 9, 10 and 25, 1998.
[Exhibit 20]. He was seen by a radiologist and had additional x-rays in
November, 1998. [Exhibit 9].
Prescriptions for a multitude of medications for Claimant over the years -
including the present - were admitted in evidence. [Exhibit 6]. Records showing
approximately 77 physical therapy visits attended from 1998 through parts of
1999 were also admitted, [Exhibit 7], as were records of Claimant's attempts to
avoid treatment by Dr. Mamis because, as he testified, he feared he was not
getting appropriate treatment from him. [
Exhibit 5]. Records from Sullivan Correctional Facility, to
which he was transferred in either late 1998 or early 1999 - it was not clear
from the testimony - were also admitted, and show Claimant's continued treatment
by medical personnel while in DOCS custody. [Exhibit 4]. Further nerve studies
were undertaken in August, 1999, showing a "loss of median nerve fibers at the
wrist." [Exhibit 10].
The Court has reviewed the remaining exhibits presented by Claimant. [Exhibit
1, 13, 14, 15, 16, 19 and 21]. No other witnesses testified on Claimant's
It is "fundamental law that the State has a duty to provide reasonable and
adequate medical care to the inmates of its prisons," including proper diagnosis
Rivers v State of New York
, 159 AD2d 788, 789 (3d Dept 1990), lv
76 NY2d 701 (1990).
In a medical malpractice claim, the Claimant has the burden of proof and must
prove (1) a deviation or departure from accepted practice and (2) evidence that
such deviation was the proximate cause of the injury or other damage. A cause
of action is premised in medical malpractice when it is the medical treatment,
or the lack of it, that is in issue. A Claimant must establish that the medical
care giver either did not possess or did not use reasonable care or best
judgment in applying the knowledge and skill ordinarily possessed by
practitioners in the field. The " ‘claimant must [demonstrate] . . . that
the physician deviated from accepted medical practice and that the alleged
deviation proximately caused his . . . injuries' (
Parker v State of New York
, 242 AD2d 785, 786 . . .)." Auger v State
of New York
, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof,
no viable claim giving rise to liability on the part of the State can be
sustained. Hale v State of New York
, 53 AD2d 1025 (4th Dept 1976), lv
40 NY2d 804 (1976). A medical expert's testimony is necessary to
establish, at a minimum, the standard of care. Spensieri v Lasky
NY2d 231 (1999).
If a claim can be read to allege simple negligence, or medical negligence, then
the alleged negligent omissions or acts by the State's employees can be readily
determined by a fact finder using common knowledge without the necessity of
Coursen v New York Hospital-Cornell Med. Center
, 114 AD2d 254, 256 (1st
Dept 1986). Similarly, the State may be found liable for ministerial neglect if
its employees fail to comply with an institution's own administrative procedures
and protocols for dispensing medical care to inmates. Kagan v State of New
, 221 AD2d 7,10 (2d Dept 1996).
In this case, only the testimony of the Claimant has been presented in support
of any claim of malpractice on his direct case. No competent medical evidence
was presented, through a treating physician or an expert witness whose opinion
was based upon the available medical records, to support the allegation of
medical malpractice. There is no medical evidence on any medical issue and thus
no proof that accepted standards of care were not met. Accordingly, the claim of
medical malpractice must be dismissed.
Additionally, from this record there is no indication that the actions of
medical care givers amounted to simple negligence or ministerial neglect.
Coursen v New York Hospital-Cornell Med. Center
; Kagan v
State of New York
, supra; cf. Jacaruso v State of New York
Claim No. 97721 (Lebous, J., filed September 9, 2002). To the extent the claim
can be read to assert such theories, any cause of action for negligence or
ministerial neglect is also dismissed.
While the Claimant clearly suffers from discomfort still, and presented as a
credible witness whose subjective complaints of pain are credited, without any
medical evidence beyond unexplained medical records, and without expert
testimony, there is no basis to determine that the actions or omissions of
Defendant's agents should subject Defendant to liability. On the one hand, are
the Claimant's subjective complaints of pain and the sense that he has that
"something" should have been offered to alleviate that condition. On the other
hand, and based upon the medical evidence submitted, is a track record of
constant visits to medical personnel and outside specialists, apparently trying
to resolve Claimant's medical issues. Additionally, there is some internal
inconsistency to the testimony he offered. For example, Claimant stated that
Dr. Mamis "made him" go back to work, but the medical excuse slip he submitted
in evidence instead excused him from certain tasks. [See Exhibit 2]. Without
medical testimony, Claimant simply cannot establish causation between any
alleged breach of the standard of care and any harm suffered.
The Defendant's motion to dismiss for failure to establish a
case, made at the close of Claimant's direct case and upon
which decision was reserved at the time of trial, is hereby granted, and Claim
Number 101315 is dismissed in its entirety.
Let Judgment be entered accordingly.