New York State Court of Claims

New York State Court of Claims

ALVEAR v. THE STATE OF NEW YORK, #2004-030-040, Claim No. 105708


Case Information

JUAN MANUEL ORTIZ ALVEAR The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
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:
November 17, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 Correctional Facility.

Claimant testified[1]
that on October 19, 1998 he was at his job assignment in the Green Haven commissary when "a box of jack-mack[2] fell on" 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. [
See 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 irrelevant.

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 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). 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 dismissed.
Claimant has failed to establish a
prima facie case, and, accordingly, Claim Number 105708 is dismissed in its entirety.
Let Judgment be entered accordingly.

November 17, 2004
White Plains, New York

Judge of the Court of Claims

[1] Claimant indicated that he understood the English language, but spoke with a heavy Spanish accent that was difficult to interpret at times.
[2] Cans of tuna fish. All quotations are to trial notes or to audiotapes unless otherwise indicated.