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 ). To
sustain that burden Claimant was required to present expert testimony (see
, 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
, 15 NY2d 20, 24 ). 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 ). 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
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.