New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2004-034-007, Claim No. 106990


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:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.New York State Attorney General
Third-party defendant's attorney:

Signature date:
May 31, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant filed the above Claim on November 25, 2002, seeking to recover damages from the State as a result of alleged medical malpractice and negligence in its treatment of an injury he had sustained on October 18, 2001. The matter was scheduled for trial during this Court's May 2004 prison term, at which point Defendant filed and served a motion to dismiss pursuant to CPLR 3211 (a) (7), for failure to state a cause of action. Claimant opposed that motion, and the Court deferred its review of the matter pending trial on May 14, 2004. Now after hearing trial testimony from Claimant and a defense witness, Richard Apps, as well as a review of the four exhibits introduced into evidence, the Court will deny and dismiss the Claim, based upon Claimant's failure to establish through expert testimony that the State deviated from accepted medical practice in the treatment it provided, and that those deviations proximately caused him injury. Defendant's dismissal motion (Motion No. M-68359) will be denied as moot.

The Court finds that on the evening of October 18, 2001, Claimant sustained an injury to his left shoulder while playing in a recreational football game. At that point he was an inmate confined to Wyoming Correctional Facility. He was taken for treatment to the facility hospital, where a telemedical videoconferencing occurred with a physician at the Erie County Medical Center. At the recommendation of that physician Claimant was taken from the prison to Wyoming County Community Hospital, where he was physically examined, and x-rays were taken. It appears undisputed that Mr. Scott was diagnosed as having sustained a third degree separation of the acromioclavicular joint of his left shoulder. He was prescribed pain medication and a sling to immobilize his arm, before being released from the hospital that same evening with instructions to undergo an evaluation by an orthopedic surgeon.

On or about November 1, 2001, Claimant was examined by Dr. Sheldon Stein, an orthopedic surgeon who was not employed by Defendant, but treated inmate patients under a contractual relationship with the State. Following at least three more consultations Dr. Stein ended his treatment of Mr. Scott on August 14, 2002, without any surgical intervention, noting that Claimant had recovered a full range of motion. Claimant has disputed that representation, asserting that he continued to experience both pain and a restriction in his shoulder movement through the time of trial.

Between the summer of 2002 and the spring of 2004 Claimant repeatedly sought medical attention for his shoulder pain at the five correctional facilities to which he was confined. Treatment for the most part has been limited to the supply of various pain medications. Mr. Scott has been frustrated at the claimed lack of improvement to his condition, to the point of filing institutional grievances in the summer of 2002 and spring of 2003. It appears that in the recent past Defendant has arranged to have further treatment by at least one orthopedic surgeon, a Dr. Coniglio, who scheduled Mr. Scott for shoulder surgery at Wyoming County Community Hospital on March 23, 2004. Claimant then cancelled the recommended surgery, a mumford excision of his left clavicle, and requested that another orthopedic surgeon provide a second opinion regarding the propriety of the scheduled procedure. Mr. Scott reported that no further action has been taken toward that end, since he has been advised by a physician at Elmira Correctional Facility, where he presently is confined, that the State will not pay the cost of a further orthopedic review, and he cannot afford to pay the cost of a second opinion on his own.

It is Claimant's position that Defendant's conservative treatment of his shoulder injury breached its duty to provide reasonable medical care to him, causing him damage in the form of ongoing pain and discomfort. He also contends that even though Dr. Stein and Dr. Coniglio may not be employees of the State, Defendant would be responsible for their alleged malpractice in his treatment, since they act under contract with the State, and he is not free to select an orthopedic surgeon on his own.

Understanding that Mr. Scott has alleged claims for both negligence and medical malpractice, the Court is nevertheless compelled to dismiss the matter for failure to set forth a prima facie claim. Claimant was obligated to support his allegations of malpractice with proof at trial that the medical treatment provided by Defendant or its claimed physician agents deviated or departed from good and accepted medical practice, and that the departure was a proximate cause of injury to him (
see Roseingrave v Massapequa Gen. Hosp., 298 AD2d 377, 379 [2002]). To sustain that burden Claimant was required to present expert testimony (see Roseingrave, 298 AD2d at 379). That requirement is based upon the concept that such technical matters are ordinarily not within the realm of competence of a lay trier of fact (see McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20, 24 [1964]). Claimant failed to produce at trial any expert evidence in support of his claim.
Characterizing the conduct in question as "negligence" cannot work to relieve Claimant from that obligation. The distinction between medical malpractice and negligence is a subtle one, since malpractice is a species of negligence (
see Weiner v Lenox Hill Hosp., 88 NY2d 784, 787-788 [1996]). A claim would sound in medical malpractice when the challenged conduct constitutes medical treatment, or bears a substantial relationship to the rendition of such treatment by a licensed physician, with negligence, in contrast, relating to the failure to fulfill a different duty (see Weiner, 88 NY2d at 787-788). Here, the allegations clearly challenge the quality of medical treatment rendered, including the actions of two physicians in such treatment, and must be deemed in the nature of malpractice rather than ordinary negligence. Regardless, the allegations of misconduct are not readily determinable through the evaluation of evidence based on common knowledge, such that this Court as the trier of fact cannot fairly weigh Mr. Scott's contentions without expert assistance.
Based upon the foregoing, the Claim is hereby dismissed, and Defendant's motion (Motion No. M-68359) is denied as moot. The Chief Clerk of the Court is directed to enter judgment accordingly.

May 31, 2004
Buffalo, New York

Judge of the Court of Claims