Louis Barbieri, the Claimant herein alleges in Claim Number 103098 that
Defendant's agents failed to provide adequate medical care while he was
incarcerated at Green Haven Correctional Facility (hereafter Green Haven).
Trial of the matter was held at Sing Sing Correctional Facility on July 29,
Claimant testified that on July 11, 13 and 14, 2000 he sought medical treatment
from a physician for pain in his "right
or "back." On July 14, 2000 he was "finally seen by a provider, who was a
nurse, not a physician." Claimant relayed his complaints of acute pain in his
back, and the nurse took an x-ray. When the x-ray "came back negative for kidney
stones", Claimant was returned to his cell.
On July 15, 2000 Claimant went to emergency sick call because of "intolerable"
pain. He was taken to the clinic and seen by a nurse, who "looked at the
record, took a urine sample and gave . . . [him] some antibiotics." Claimant
was not physically examined.
On July 16, 2000 Claimant again sought emergency help because of pain, and was
taken to the facility clinic. He was physically examined on this occasion, and
blisters on his back and a rash were discovered, indicating, he said that he had
shingles. Claimant remained in the facility hospital "in isolation" for 18
days. Claimant maintained that because he was not diagnosed within five days of
its onset, the disease became more severe, and he was left with damage to the
nerves in his side.
Claimant described shingles as a disease originating with his own childhood
chicken pox. Because chicken pox is a virus, he stated, it never leaves the
body, and may lie dormant until a rash appears on various telltale portions of
the body, specifically the right or left flank of the back, the shoulder, and/or
the face among other areas. Claimant said that early diagnosis can curb the
severity of the disease because of antibiotic treatment, and would avoid the
"serious side effects" of nerve damage, requiring years of recovery. Claimant
argued that had he been referred to a physician earlier, he would have
benefitted from early diagnosis of a relatively common condition among "elderly
people". Claimant said he is 64 years old. He still has pain in his right
Claimant testified that he was not interested in monetary damages particularly,
but hoped that the Court could direct that the facility have doctors, instead of
Claimant's ambulatory health record (hereafter AHR) confirms that he sought
medical assistance on July 11, 13, 14, 15 and 16, 2000, and was apparently seen
by medical personnel on July 13, 14, 15 and 16, 2000 and for some time
thereafter. [See Exhibit 1]. On the July 16, 2000 AHR there is a notation that
he was admitted to the facility hospital with a diagnosis of "herpes
No other witnesses testified and no other evidence was submitted.
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, the question of the kind of care afforded as well as any failure
to diagnose is clearly one based on malpractice theories. Establishing a
ministerial neglect claim, in contrast, would require Claimant to show how
Defendant's agents violated their own procedures, or that the alleged negligence
could be perceived without the assistance of expert testimony. Claimant's
subjective complaints over a few days, and the frustration he clearly feels at
being seen by medical personnel he did not view as adequately prepared to render
a diagnosis and find out what was wrong, does not establish liability.
Additionally the record of visits to medical personnel, and the attempts to
alleviate whatever immediate complaints the Claimant had, as well as to discover
what - if any - was the root cause, is more consistent with the adequate
provision of medical care than with its opposite.
In terms of establishing
that a claim of malpractice should lie, no competent medical
evidence has been presented through an expert opinion to establish the standard
of care applicable, causation between any alleged breach of the standard of care
and any harm suffered. Although the Claimant is clearly a capable individual
who appeared very sincere and well-versed in what medical lore he had read, he
is not a physician and is thus not qualified to render opinions as to what kind
of medical personnel would be qualified to assess his condition, and whether he
received appropriate care under the circumstances. Without expert testimony, the
claim herein cannot be established. Accordingly, reading the cause of action as
one asserting malpractice, it 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.
The Defendant's motion to dismiss for failure to establish a
case, upon which decision was reserved at the time of trial,
is hereby granted, and Claim Number 103098 is dismissed in its entirety. Any
motions not otherwise disposed of are hereby denied.
Let Judgment be entered accordingly.