Miguel De Freitas, the Claimant herein, alleges in claim number 104613 that
Defendant's agents were negligent in failing to properly maintain a security
window which struck him causing him injury; failing to provide him with timely
medical treatment and to properly train its employees in rendering medical
treatment; and were also liable in constitutional tort, while he was
incarcerated at Green Haven Correctional Facility (hereafter Green Haven).
Trial of damages alone with respect to the first cause of action concerning
negligent failure to maintain the security
as well as a unified trial on the remaining three causes of action, were held at
Sing Sing Correctional Facility on July 29, 2004.
that while he was watching television in the recreation room of the J-Block
housing unit on January 30, 2000, he was struck on the right side of his head by
a security window and was rendered unconscious. Fellow inmates woke him up, by
splashing water on him and cleaning his "bloody injuries at the slop
Additionally, inmates notified the
guards assigned to J-Block of the incident. Correction officers notified the
medical department by telephone of the incident. The "medical response team
arrived thirty minutes later," taking Claimant to the facility hospital by
stretcher. He said he suffered "numerous head and neck injuries and
lacerations" and "still suffers from migraine headaches and stiff neck that
comes and goes without warning [as well as] ringing in the ears, dizzy spells,
hearing problems, and . . . blackouts." He stated that all these conditions are
the direct result of the window falling on his head, and indicated that he seeks
damages in the amount of $75,000.00.
With respect to his second cause of action, "failure to provide immediate
medical treatment," Claimant stated that the thirty minute delay between his
injury and being seen by medical personnel caused him harm in the form of
anxiety and in unnecessary bleeding. He asked for damages in the amount of
$25,000.00. He said when the window "crashed on me", the officers "in the
bubble did not know what happened to me," and did "not make an immediate
response." Once other inmates picked him up and took him to the slop sink -
"right behind the officers' station" - and rinsed off some of the blood, the
officers then "called it in."
When "sick call came" to J-Block, Claimant testified, they came as "an escort,"
not prepared to render medical assistance. Notably, the escort included a nurse.
When the nurse who came "realized the condition . . . [he] was in, they had to
go back to the hospital and get one of those wheel structures . . . " Claimant
said that "all this took 30 minutes when it should originally have been called
in as an emergency."
The third cause of action, alleging a violation of Claimant's State
Constitutional right to be free of cruel and unusual punishment and to have
equal protection of the law, was based upon Claimant's having been "left injured
and in pain, suffering severe dizziness, lame and bleeding" for 30 minutes
before the medical response team arrived to assist him. He asked for damages in
the amount of $25,000.00.
The fourth cause of action, alleging that Defendant's agents were negligent in
failing to properly train correction officers, was based upon the correction
officers' alleged failure to immediately provide first aid to Claimant from
available first aid kits, and to immediately use a stretcher available at the
J-Block housing unit to move him to the medical facility sooner. He asked for
damages in the amount $35,000.00.
Claimant's ambulatory health record (hereafter AHR) for January 30, 2000
confirms that Claimant was initially seen at J-Block, and received further
medical treatment at the facility hospital. [Exhibit 4]. The AHR notes indicate
that Claimant had ". . . superficial lacerations" on his "temple" and his ear
and neck, was prescribed pain medication, and was examined for any neurological
. He was placed on 24 hour observation. [Id].
testified that he had "indentations" on his forehead and the back of his head at
the time of the accident.
On cross-examination, Claimant attempted to explain why, despite losing
consciousness, he was able to recount any of the activities taking place around
him, by saying he initially "blacked-out" but "regained consciousness at the
sink." He said he was never totally "out of it." He confirmed that he did not
receive any stitches or surgery, as a result of the accident, and was only
hospitalized for the 24 hour observation period.
No other witnesses testified and no other relevant evidence was
With respect to Claimant's first cause of action premised in negligence,
Claimant has not established any actual damages, beyond his immediate treatment
at the time, and the immediate pain of the accident, by a preponderance of the
credible evidence. As to any present subjective complaints, these are not
substantiated by any medical or other evidence. Accordingly, only nominal
damages in the amount of $100.00 are awarded herein based upon the Claimant's
immediate injury. Interest in the award shall run from January 23, 2004 to the
date of entry of judgment.
Love v State of New York,
78 NY2d, 540.
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. 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
, Claim No. 97721 (Lebous, J., filed September 9, 2002). Claimant has
not established how, if at all, any alleged delay in treatment is tantamount to
ministerial neglect, or how any delay increased his injury or otherwise harmed
him. To the extent the claim can be read to assert such theories, any cause of
action for negligence or ministerial neglect is also
The cause of action premised on alleged violations of the State
is dismissed. Only where it is necessary to ensure the effectiveness and promote
the purposes of the allegedly violated provision will a constitutional tort
remedy be implied. Brown v State of New York
, 89 NY2d 172, 191 (1996).
Here, the Court is not convinced that any monetary recovery would further the
purpose of the underlying constitutional provisions nor, indeed, make the
Finally, the cause of action premised on an alleged negligent failure to train
correction officers properly is also dismissed. To establish a
case of negligence the following elements must exist: (1)
that defendant owed the claimant a duty of care; (2) that defendant failed to
exercise proper care in the performance of that duty; (3) that the breach of the
duty was a proximate cause of plaintiff's injury; and (4) that such injury was
foreseeable under the circumstances by a person of ordinary prudence. Claimant
has not established this cause of action either.
The Defendant's motion to dismiss Claimant's second, third and fourth causes of
action for failure to establish a
case, upon which decision was reserved at the time of trial,
is hereby granted, and those causes of action in Claim Number 104613 are
It is ordered that to the extent Claimant has paid a filing fee, it may be
recovered pursuant to Court of Claims Act § 11-a(2).
Let Judgment be entered accordingly.