Claimant alleges in Claim Number 105576 that he received improper medical care
with respect to his complaints of back pain while he was an inmate at Fishkill
Correctional Facility (hereafter Fishkill) on or about March 2, 2000. Trial on
the issue of liability was held on July 7, 2004.
As an initial matter, Claimant withdrew his cause of action for medical
malpractice, and confined his claim to that of ministerial neglect or medical
At trial he asserted essentially two bases for his claim of ministerial neglect
and medical negligence. First, he alleges, he was directed to work at his
assigned program in the law library despite having been issued medical "no-work"
slips indicating he should not engage in certain tasks. The work assignment
involved assisting fellow inmates with preparing grievances, writs of habeas
corpus and other types of legal documents. He testified that he was "ordered to
work on at least 25 different occasions despite having a medical ‘no-work'
Second, he alleges that when he requested sick call services he was not seen by
medical personnel in a timely fashion. On March 2, 2000 Claimant said he
sustained an injury while exercising, and sought medical attention for his lower
back pain. He asserted that despite being seen by numerous physician's
assistants or nurses thereafter, he was repeatedly denied treatment for pain
until ultimately being seen by a physician. Being seen by a physician, however,
was always delayed, with medical personnel "putting him off" for as long as two
Claimant's "first medical ‘no-work' slip was issued by P.A. [Physician's
Assistant] Macomber," on March 13, 2000 restricting Claimant from working until
March 23, 2000. [
Exhibit 2]. The slip indicates the following restrictions: "No Work . . . No
Prolonged Walking (Longer than 1/4 mile) . . . No Prolonged Standing (Longer
than 10 minutes)." [Id].
Claimant testified that he was nonetheless
ordered to work at his work assignment in the law library on March 16, 17, and
20, 2000, starting at 8:00 a.m. Logbook entries from the law library confirm
that Claimant signed in for his work assignments for those days. [Exhibit 9].
On April 24, 2000 Claimant was issued another medical no-work slip by Dr.
Francis, effective from that day until July 24, 2000. [Exhibit 3]. The
restrictions in this slip are: "No Work . . . May Go to Yard but NOT to
Participate in Sports Activities . . . No Heavy Lifting: 0-5 Lbs. . . . No
Bending." Claimant testified that he was called to work on April 24, 25, 26, 28,
29, May 1, 2, 3, 6, 7, 9, 10, 12, 15, 17, 22, 2000. Some of these dates are
confirmed in the logbook entries. [Exhibit 9].
Claimant also testified at length with respect to the State's alleged denial of
medical attention. He explained that inmates are required to sign up for sick
call the night before medical assistance is requested. The request is logged by
correction officers at the housing unit. After the request is made, generally,
the infirmary unit will call the housing unit requesting the inmate appear for
sick call. When an inmate is "on the housing unit," he is called to the sick
call area. When the inmate is "at a program," he is called to attend from the
program. Claimant asserts that on those occasions when he would report to sick
call, "they didn't want to see him."
Specifically, on March 13, 14, 17, 20, 21, 23 and 24, 2000, and on April 10 and
17, 2000, Claimant alleges he was denied sick call services. He alleges that
logbook entries admitted in evidence show that he made these requests. [
Exhibit 13]. Additionally, he said that as a matter of procedure,
"any time you have some type of encounter with medical staff it has to be
documented in the ambulatory health record" [hereafter AHR]. Citing "title 9
section 7651.19" as authority, Claimant stated that medical personnel are
required to record in ink on an inmate's AHR all health care services provided
both by facility personnel and independent health care providers. Because there
are no entries for the given dates in his AHR, Claimant argued that the failure
to allow him sick call services is confirmed. [Exhibit 1].
On one specific occasion he recalled requesting sick call services on April 17,
2000, and then being told by a nurse through his housing unit officer not to
report to sick call on that day because Claimant had a doctor's appointment on
April 24, 2000. [Exhibit 12]. When so advised, Claimant filed a grievance.
[Exhibit 10]. The grievance was ultimately accepted, with the Superintendent
indicating that the nurse's "inappropriate" actions had been addressed.
On another occasion, he recalled signing up for sick call on May 4, 2000, and
being seen by a nurse. When he explained his problems with his back to the
nurse, "the nurse didn't want to hear it." She issued another medical no-work
slip for Claimant while the slip issued by Dr. Francis was still in effect.
[Exhibit 4]. The slip issued by the nurse indicates that Claimant should not
work from a starting date of May 4, 2000 until May 12, 2000.
The specific restrictions in this slip are "No Work . . . No
Bending; No Yard - May watch T.V." [Id].
On cross-examination, Claimant conceded that he had been issued no-work slips
prior to March 3, 2000 based upon medical conditions at Fishkill and other New
York State Department of Correctional Services (hereafter DOCS) facilities,
although he thought on occasion the restrictions were related to participation
in sports activities. He could not say offhand how information concerning any
work restrictions is disseminated throughout the facility, except to note that
the slips indicate that the "white copy goes to the housing unit, the yellow
copy goes to the work supervisor, and the pink copy goes to medical records." He
claimed that when he asked for a copy of the no-work slip after the first one
was issued by PA Macomber on March 13, 2000, he was told that he could obtain a
copy only with a Freedom of Information Law [hereafter FOIL] request.
Claimant agreed that the April 17, 2000 grievance [Exhibit 10] was the only
documentation of a grievance submitted to this Court in connection with the
present claim, but stated he did file grievances with respect to the other
alleged denials of sick call services. Claimant admitted that he did not
mention being forced to work despite issuance of medical no-work slips in this
grievance, nor did he file any other grievance premised upon being directed to
work despite issuance of medical no-work slips.
When Claimant was ordered to work on March 16, 2000, he told the housing
officer he was not supposed to work. According to the AHR, it also appears that
he was seen by medical personnel at 9:15 a.m. on that day where he was reminded
of an upcoming appointment with Dr. Francis on March 30, 2000, and although
offered medication for pain he refused it. [Exhibit 1]. Claimant agreed he had
been ordered to go to work at 8:15 a.m. on March 16, 2000 - since "they start
programs at 8:00 a.m." - was there for one (1) hour, and thereafter went to sick
call. He did not ask for a copy of the medical no-work slip despite being seen
by medical personnel. After being seen by medical personnel on March 16
Claimant said he reported back to work, but did not file a grievance. The Court
saw numerous notations in Claimant's AHR that medication had been "refused" by
Claimant. [See Exhibits 1 and A].
Claimant agreed that he "did nothing" after being told to report to work on
March 17, 2000 for the a.m. and p.m. shifts, but said that "once an officer
gives you a direct order there's nothing you can do." He did not file a
grievance with respect to being told to report to work on March 17, 2000, nor
did he request a copy of the no-work slip. Indeed, Claimant stated that despite
being told "25 times" to report for work while medical no-work slips were in
effect he did nothing about it - from asking for copies to filing a grievance.
He said that he did speak to supervisory personnel, Carl Goode, and Ms. Manny,
at the law library, but did not ask them for copies of the no-work orders, nor
did he ask them whether they had records of the no-work slips except for the
first time he had made the request. He claimed, however, that he saw copies of
the no-work slips on Ms. Manny's desk at the law library and that she was
working on those days he was directed to work. Claimant admitted that in the
claim itself there is no mention of Ms. Manny having knowledge of the no-work
slips and directing him to work.
Claimant conceded that based upon his work in the law library he was more
knowledgeable than the average inmate with filing grievances or other methods of
obtaining relief through the legal process. He had worked in the law library for
When he was seen by medical personnel on March 7, 2000 after injuring his lower
back he told them that he'd "never had back problems before." [Exhibit 1]. On
cross-examination, Claimant reiterated that he'd not had back problems before,
but then had to concede that additional AHR records showed that he had lower
back problems in 1993, 1994, 1996, 1997 and 1998, and was seen by DOCS medical
personnel in those years. [
Exhibit A]. Additionally, Claimant conceded he had also received
no-work slips from Fishkill medical personnel on January 5, 1998 and January 6,
1999, but had never been directed to work while these slips had been in effect.
Claimant agreed on cross-examination that prior to March
13, 2000, he had been issued a no-work slip on January 9, 2000 and had not been
directed to work between January and March. Claimant was not issued a copy of
the January 9, 2000 no-work slip, nor did he request one, and expressed himself
as unaware of whether the procedure for dissemination of the information was the
same in January 2000, as it was on March 13, 2000. He could not recall what the
medical reason was for the issuance of the January 9, 2000 no-work slip.
No other witnesses testified, and no other evidence was admitted.
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). Because he recognized that without an expert he could not
establish any claim of medical malpractice, claimant withdrew that aspect of his
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).
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). The only
reference presented by Claimant of what standards or regulations should apply
when dispensing medical assistance to inmates was his brief reference to the
medical recordkeeping mandates of 9 NYCRR §7651.19, given in the context of
establishing that since nothing was recorded in the medical records, he was not
seen. What the actual requirements are - if any - for responding to sick-call
requests or otherwise dispensing medical care and treatment has not been
established here sufficiently to show that there has been some violation of a
regulation. Indeed, Claimant was seen regularly by medical personnel who
exercised discretion and dispensed - or did not dispense - medical treatment.
From the notations documented on his AHR, there were several occasions where he
refused analgesics. Moreover, whether Claimant suffered any harm from alleged
delays in medical treatment is not evident here.
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. In this
connection, although being directed to work despite extant medical no-work
slips would seem to present a clear violation of facility rules, Claimant did
not establish what the medical restrictions actually were, who was made aware of
them, and what, if any, harm he suffered. In negligence terms, he did not
establish what duty was owed, that the duty was breached and that the breach of
duty was a proximate cause of any injury to Claimant.
Finally, the Claimant's version of how matters transpired is not credible.
Notably, it is not credible that an individual as well-versed as Claimant in the
grievance process only filed one grievance concerning the alleged repeated
failure to provide him with medical assistance, and none concerning the work
issues. Claimant's indication that he asked only once for a copy of a no-work
slip from the individuals who he asserted would have received copies, and made
no other effort to avoid working, is also not credible.
To the extent the claim can be read to assert such theories, the cause of
action for negligence or ministerial neglect is not established by a
preponderance of the credible evidence. Accordingly, the Defendant's motion to
dismiss, upon which decision was reserved at the time of trial, is hereby
granted, and Claim Number 105576 is dismissed in its entirety.
Let Judgment be entered accordingly.