Christopher Mack, the Claimant herein, alleges in Claim Numbers 106061 and
106061-A, respectively, that Defendant's agents took his medical equipment and
failed to provide him with adequate medical care while he was in the custody of
the New York State Department of Correctional Services (hereafter DOCS). Trial
of the matter was held on November 10, 2004.
Claimant testified that when he first arrived at reception at Downstate
Correctional Facility (hereafter Downstate) from Rikers Islandon or about
December 10, 1999 personnel noted that he walked in with a walking cane, and
suggested that he "give it to them and go to sick call the very next
He indicated that while "at Rikers Island, . . . [he] couldn't get any help. . .
for the nine months . . . [he] was there." When he was processed in reception
at Downstate, they took x-rays, and granted him permits for the use of a back
brace and a cane.
He remained at Downstate,
but was only allowed in his cell, until he was placed at Fishkill Correctional
Facility (hereafter Fishkill). He testified that he couldn't walk, and was
always looking for assistance to figure out what was wrong.
He was later "sent to Marcy Correctional Facility - a place where people with
psychiatric problems are sent - against . . . [his will]." His cane was taken
away and he was given a wheelchair. Defendant's agents, he testified, lost his
property - including his back brace and his walking cane - on this transfer. He
filed a grievance relative to his claim of property loss, as well as his claims
regarding medical equipment. [
Exhibit 1]. Because he had been sent to Marcy by mistake, he was
again transferred, this time to Green Haven Correctional Facility (hereafter
Green Haven), even though his status did not require maximum security. He
testified that he was supposed to go back to Fishkill, but they sent him to
He continued to try to get help from medical personnel at Green Haven, for not
only his back pain but for HIV as well. He testified that the "doctor would not
give . . . [him] anything stronger for the back pain because of the HIV." It
"took two weeks for the outside doctor to come in to evaluate . . . [him]."
When the physician came, the cell door wouldn't open, and he missed the visit.
On a subsequent day, he was "in the bull pen" waiting for the medical visit, but
was taken out of the bull pen back to his cell, rather than to the doctor,
effectively being denied a doctor visit. It took another three weeks to see a
doctor, he alleged, who then prescribed medication Claimant was not supposed to
When Claimant was discharged from Green Haven, his back brace and cane were not
given to him. Although he "had permits" for these items, he alleges he was
never given this medical equipment. It is noted that the varied, uncertified
medical records Claimant submitted contain two medical permits for a back brace
and a cane, dated, respectively, December 19, 2000 and November 15, 2001.
[Exhibit 2]. The 2001 permit indicates that it "ends" on December 31, 2001.
. The State stipulated that "at some point" Claimant possessed a
back brace and a cane while he was in DOCS custody.
Claimant summarized his direct testimony by saying that he just didn't
understand why "they couldn't give . . .[him] the back brace and cane and give .
. .[him] medication for pain." He expressed great concern for the future of his
family, and his unborn child, given his HIV status.
On cross-examination, Claimant conceded that the original back brace and cane
he asserted had been taken away from him, had been issued at Rikers Island in
June 1999, at City expense, and thus they were not his property in bailment
terms. Claimant also conceded that Dr. Lester N. Wright, the Chief Medical
Officer of DOCS, in a letter to Claimant dated November 26, 2001, wrote that
there was no medical necessity for Claimant to be issued a back brace and cane,
and that his treatment was being handled by physical therapy and follow-up with
a Physiatrist. [See Exhibit 1]. Claimant also agreed that between November
2001 and December 12, 2003,
there was no new medical determination that a back brace and cane were medically
No other witnesses testified and no other evidence was submitted.
Although the State has a duty to secure an inmate's personal property, [
Pollard v State of New York
, 173 AD2d 906 (3d Dept 1991)], as an initial
matter in a bailment claim the Claimant must establish ownership. Here,
Claimant readily conceded that the brace and cane he alleged were taken from him
had been issued by New York City medical personnel while he was in City custody,
and had not been purchased by Claimant or any member of his family.
Accordingly, Defendant's motion to dismiss this aspect of his claims for failure
to establish a prima facie
case is in all respects
Additionally, 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
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). To the extent the claim
can be read to assert such theories, any cause of action for negligence or
ministerial neglect is also dismissed.
While the Court appreciates the Claimant's distress at his perceived inadequate
treatment while in State custody, as well as his concerns for the future of his
child given Claimant's alleged HIV status, he simply has not established his
claims to the degree necessary to allow the Court to impose any liability upon
the State of New York.
The Defendant's motion to dismiss for failure to establish a
case with regard to medical malpractice and ministerial
neglect, upon which decision was reserved at the time of trial, is also granted,
and Claim Numbers 106061 and 106061-A are dismissed in their