New York State Court of Claims

New York State Court of Claims

HEROUARD v. THE STATE OF NEW YORK, #2004-030-027, Claim No. 105576


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 30, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 negligence.

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' slip."[1]

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 weeks.

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. [
See 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.
[Id]. 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 3 years.

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. [
See 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. [Id].
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 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). Because he recognized that without an expert he could not establish any claim of medical malpractice, claimant withdrew that aspect of his claim.
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).
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). 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
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. 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.

August 30, 2004
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.