New York State Court of Claims

New York State Court of Claims

DE FREITAS v. THE STATE OF NEW YORK, #2004-030-024, Claim No. 104613


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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
August 16, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 window,[1]
as well as a unified trial on the remaining three causes of action, were held at Sing Sing Correctional Facility on July 29, 2004.
Claimant testified[2]
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 sink."[3] 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 impairment.
[Id]. He was placed on 24 hour observation. [Id]. Claimant 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 submitted.

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 and treatment.
Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied 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 denied 40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 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 expert testimony.
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 York, 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, supra; Kagan v State of New York, supra; cf. Jacaruso v State of New York, 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 dismissed.
The cause of action premised on alleged violations of the State Constitution[4]
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 Claimant whole.
Finally, the cause of action premised on an alleged negligent failure to train correction officers properly is also dismissed. To establish a
prima facie 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
prima facie case, upon which decision was reserved at the time of trial, is hereby granted, and those causes of action in Claim Number 104613 are dismissed.
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.

August 16, 2004
White Plains, New York

Judge of the Court of Claims

[1] Partial summary judgment on the issue of liability with respect to the first cause of action had been granted in a prior Decision and Order. See De Freitas v State of New York, Claim No. 104613, Motion No. M-67504 (Dated January 23, 2004, Scuccimarra, J.).
[2] It should be noted that Claimant essentially read his Claim into the record.
[3] All quotations are to trial notes or audiotapes unless otherwise indicated.
[4] The factors the Court must consider to determine if a cause of action for a State constitutional tort is properly brought in the Court of Claims are whether: (1) the applicable constitutional provision is self-executing; (2) monetary damage remedies further the purpose of the underlying constitutional provisions and necessarily assure its effectiveness; (3) the provisions are such that they impose a clearly defined duty on the State officers and/or employees; (4) declaratory and injunctive relief is inadequate; and (5) money damages necessarily deter governmental conduct and make the claimant whole. Brown v State of New York, 89 NY2d 172 (1996). In New York, constitutional provisions are presumptively self-executing. Violation of every self-executing provision will not always support a claim for damages however.