Juan Manuel Ortiz Alvear, the Claimant herein, alleges in Claim Number 105708
that Defendant's agents failed to provide him with adequate medical treatment
when he was incarcerated at Green Haven Correctional Facility (hereafter Green
Haven). Trial of the matter was held on October 22, 2004 at Sing Sing
that on October 19, 1998 he was at his job assignment in the Green Haven
commissary when "a box of jack-mack
him. As the box fell, he put his hand above his head injuring his finger. He
repeatedly asked to be seen by a neurologist, but he was refused. He complained
repeatedly, ultimately writing to the Superintendent, who referred him to Dr.
Koenigsmann, the Facility Health Services Director. In a Memorandum dated April
16, 2002 directed to Claimant, Dr. Koenigsmann told Claimant that medical
personnel who had physically examined Claimant had determined that he "did not
need to be referred to a neurologist." [Exhibit 1].
Claimant testified that he was told to "take Motrin three (3) times per day but
this was no good for . . . [him]." He took it for three (3) years, which he
said was excessive, but the treating physician, Dr. Mamis, refused to do other
than prescribe Motrin. It appears that Claimant did see a neurologist in
September 2002, who, he claimed, prescribed different pain medication, but Dr.
Mamis "refused to allow the prescription." There is some documentation of a
visit to a neurologist in September 2002, upon referral in August 2002. [
Exhibits 2 and 3].
Photocopies of Claimant's ambulatory health record (hereafter AHR) for the
period from January 2003 to July 2004 were admitted in evidence without
objection. [Exhibit 4]. The AHR shows that Claimant was seen regularly by
different medical personnel throughout that period. The present claim, however,
was filed on March 7, 2002. Accordingly, the portion of the AHR submitted is
Claimant testified that he filed several grievances, complaining that he wanted
to see a specialist, as well as a doctor who spoke Spanish, and submitted
copies of these as well as some correspondence. [Exhibits 5-10]. These documents
all post-date the claim as well.
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, 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 York
Claim No. 97721 (Lebous, J., filed September 9, 2002). What the actual
regulatory requirements are - if any - for dispensing medical care and treatment
has not been established here sufficient 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. Whether the treatment he received was timely or adequate, or whether
Claimant suffered any harm from alleged delays in medical treatment is not
evident here. To the extent the claim can be read to assert such theories, any
cause of action for negligence or ministerial neglect is also
Claimant has failed to establish a
case, and, accordingly, Claim Number 105708 is dismissed in
Let Judgment be entered accordingly.