New York State Court of Claims

New York State Court of Claims

DURAN v. THE STATE OF NEW YORK, #2005-015-521, Claim No. 107409


Evidence offered in support of claim for medical negligence insufficient. Here claimant was deported to the Dominican Republic prior to trial and no evidence was offered tending to establish that any agent or employee of the defendant was responsible for the presence of needles or needle fragments in claimant's arm.

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:
Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLPBy: Tamara L. Schuman, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 11, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this claim was held in Albany on July 7, 2005. Subsequent to the filing of the claim on March 3, 2003 but prior to trial claimant was deported from the United States to the Dominican Republic. The trial was conducted by his attorney in his absence.

The claim alleges that Joaquin Duran was an inmate and insulin-dependant diabetic under the care of the Clinton Correctional Facility medical staff. He received insulin injections twice daily. X rays taken on May 18, 2001 following complaints of arm pain in claimant's left arm revealed the presence of two needles[1]
which it is alleged became embedded in his arm following insulin shots resulting in injury to the claimant. The claim did not itemize damages or specify the total amount of damages requested (see Court of Claims Act § 11 [b]). This defect, however, was not addressed in the defendant's answer and is deemed waived.
Counsel for claimant waived an opening statement and called as his only witness Lynn Khan, a registered nurse employed at Clinton Correctional Facility. Ms. Kahn in substance testified as follows:

As a nurse at Clinton Correctional Facility her normal hours of work are 6:00 a.m. to 2:00 p.m. during which she sees an average of 50-60 inmates. In 2001 her duties included the administration of insulin to approximately 20 insulin-dependent diabetic inmates. The injections were usually administered in the inmates' cells or on the dormitory gallery and insulin needles were kept in a locked cabinet. The nurse giving the injections was required to sign out the needles. The witness testified that she generally administered insulin shots to the claimant in his arms and that each shot was recorded on one of the facility's medication sheets.

The witness identified Exhibit 2 as the type of insulin syringe used at Clinton Correctional Facility in 2001. She explained the process used to administer the injection stating that she would check the script, wipe the insulin vile with an alcohol swab, wipe the recipient's arm with the swab, pinch the skin, stick and inject the insulin. After the shot was administered a sheath would be pulled down over the needle of the syringe and the syringe placed in a "needle bucket".

Ms. Khan was shown Exhibit 1 which she identified as claimant's certified medical records. She was specifically referred to pages 331-332 which she identified as records of her administration of insulin to inmate Duran. The witness admitted that she did not specifically recall giving injections to the claimant.

When asked if she would have noted any complaints by claimant of left arm pain she responded that any such complaints would have been documented in the AHR (ambulatory health record).

On cross-examination the witness stated that she earned an Associate's Degree in Nursing from Clinton Community College in 1986 and has worked as a nurse for the past 19 years during which time she has given thousands of injections. In 2001 she gave inmates insulin injections using syringes similar to those marked as Exhibits 2 and 3. She testified that the needles used were very flexible and that each syringe was equipped with a sheath or guard which she would pull over the exposed needle and click in place following the injection to prevent an accidental needle stick with a used needle. The witness testified that she always visualized the needle when engaging the sheath in order to prevent being stuck. The witness demonstrated the strength of the protective sheath by tapping it forcefully on the witness stand with no apparent effect. The witness testified that on May 18, 2001 claimant complained at sick call of left arm pain which he alleged started 8-10 days prior to the visit. The record of injections given to claimant showed that Ms. Kahn administered one of his two daily insulin injections on the mornings of May 8, 9, and 10.

The witness identified page 180 of Exhibit 1 as a record of an emergency sick call visit on May 18, 2001 at which claimant complained of left shoulder pain. He was referred to Dr. Lee who ordered an X ray of claimant's left arm. That X ray, as noted on page 179 of the exhibit, showed a needle in the muscle of Mr. Duran's left arm. She further noted that claimant refused surgery. At the time of claimant's May 18, 2001 sick call visit he was housed in the general population at Clinton.

The witness alleged that other than at sick call inmates have access to needles and pins in the facility's tailor shop and that contraband needles are used in inmate manufactured tattoo machines.

She identified page 244 of Exhibit 1 as a record of a request for a general surgical consultation for inmate Duran due to the presence of "a needle (2.5 cm) inside of the muscle of upper arm, lt." She further testified that according to the specifications listed on the backside of the packaging the syringe received as Exhibit 3 contains a 13 millimeter needle.

On redirect examination the witness stated that she had never had a needle break while giving a shot and again described the needles found in Exhibits 2 and 3.

With reference to page 180 of Exhibit 1 she explained that on May 18, 2001 claimant complained solely of left shoulder pain and that the reference to decreased range of motion was her assessment of his condition. She related that she has been to the Clinton Correctional Facility tailor shop several times even though most of her working hours are spent in the facility's clinic. She had no recollection of whether claimant had tattoos but acknowledged that page 139 of Exhibit 1 indicates that inmate Duran had no tattoos. The surgical consultation note referred to on cross-examination and contained on page 244 of Exhibit 1 was identified as having been written by Dr. Lee. The witness resisted counsel's efforts to interpret the writing as indicating that there were two 5 millimeter needles observed in claimant's arm as opposed to a 2.5 cm needle. She acknowledged that Clinton Correctional Facility no longer uses the same type of syringe for insulin injections as was used in 2001.

The witness's re-cross-examination was brief. She again referred to Dr. Lee's surgical consultation request regarding "a needle (2.5 cm)." Ms. Kahn testified that the needles she used to administer claimant's insulin injections on May 8, 9 and 10, 2001 did not break during the injections. At the conclusion of the witness's re-cross-examination the claimant rested and the defendant moved to dismiss the claim for claimant's failure to prove a prima facie case. The Court reserved decision on the motion.

In a negligence action the claimant has the burden of establishing by a preponderance of the evidence that the defendant's conduct was a proximate cause of his or her injuries (
Brewster v Prince Apts., 264 AD2d 611, lv denied, 94 NY2d 762, lv dismissed 94 NY2d 875). Expert medical proof of causation is not required if the events giving rise to the injury or the injury itself is of such a nature as to be within the common knowledge of lay persons (see Shaw v Tague, 257 NY 193). In such cases causation may be shown through claimant's own testimony and the introduction of his or her medical records (Falcaro v Kessman, 215 AD2d 432; Alvarez v Mendick Realty Plaza, 176 AD2d 557).
Here, however, the claimant's medical records standing alone are insufficient to establish that the defendant's agents or employees were in any respect negligent and that such negligence was a substantial factor in causing the claimant's injury. In fact, the credible testimony of Lynne Khan, claimant's only witness, shows that following an insulin injection she took precautions with the State-issued syringe by pulling the protective sheath over the needle while visualizing the needle in such a manner as to protect herself from an accidental needle stick. She testified that she never witnessed a needle used in an insulin syringe break and testified that the needles used to administer insulin to the claimant on May 8, 9 and 10, 2001 did not break.

Thus, the trial record is devoid of any proof of negligence on the part of the defendant and the defendant's motion to dismiss the claim for claimant's failure to prove a prima facie case must be granted.

In her post-trial memorandum of law claimant's attorney requested that the Court find the defendant negligent based upon the doctrine of res ipsa loquitur which permits an inference of negligence to be drawn solely from the happening of an accident "upon the theory that 'certain occurrences contain within themselves a sufficient basis for an inference of negligence' " (
Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226, quoting Foltis, Inc. v City of New York, 287 NY 108, 116). In order to rely upon the doctrine a claimant "must submit sufficient proof that (1) the injury is of a kind that does not occur in the absence of someone's negligence, (2) the injury is caused by an agency or instrumentality within the exclusive control of the defendants, and (3) the injury is not due to any voluntary action on the part of the injured plaintiff (see Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997]; Babits v Vassar Bros. Hosp., 287 AD2d 670, 671 [2001])" (Rosales- Rosario v Brookdale Univ. Hosp. & Med. Ctr., 1 AD3d 496, 497).
" '[The doctrine of res ipsa loquitur] requires evidence which shows at least probability that a particular accident could not have occurred without legal wrong by the defendant * * * In the administration of the law we must be satisfied with proof which leads to a conclusion with probable certainty where absolute certainty is impossible.' (
George Foltis, Inc. v City of New York, 287 NY 108, [supra at] 115). * * * [T]he burden remains with the plaintiff to prove the defendant's negligence by a preponderance of the credible evidence" (States v Lourdes Hospital, 188 Misc 2d 420, 425, revd 297 AD2d 450, revd 100 NY2d 208).
In this regard the Court is hampered by the absence of claimant's testimony which, if credible, might have negated other possible causes for the presence of the needles in claimant's left arm. Of equal importance is the fact that the certified medical records relied upon here demonstrate the presence of only a single radiopaque object at the time of the June 5, 2001 X ray (p 47) and the unexplained appearance of a second metallic foreign body on the December 10, 2001 X ray (p 29).

Even if the Court were inclined to ignore Ms. Kahn's testimony and find that somehow a flexible needle or fragment thereof was accidentally left in the claimant's left arm following an injection, it defies logic that such an event could recur in the absence of intentional conduct on someone's part which was not alleged here.

The proof at trial fails to establish that an individual for whose actions the State is liable was responsible for claimant's injury. The objects lodged in the muscle of claimant's left arm have not been removed and tested nor have they been specifically identified as needles from the type of syringes used by facility medical staff to administer insulin in May 2001. In fact, claimant's medical record contains numerous references to the size of one of the objects as "a needle [2.5 cm]" (
see Exhibit 1, pp 40, 42, 238, 244). That description is inconsistent with the size of the needle contained in either claimant's Exhibit 2 or 3. Exhibit 3's packaging indicates the needle length as 13 mm which is considerably smaller than the 2.5 cm object imbedded in claimant's arm as identified by Dr. Lee on pages 40, 42, 238 and 244 of Exhibit 1.
Additionally, descriptions of the objects vary greatly throughout Exhibit 1 and include the following: Two linear radiopaque objects (p 29), a needle (2.5 cm) (pp 40, 42, 238, 244), a needle (p 47), insulin needle fragments ( p 120), needles (p 162), metallic F.B. and insulin needles (p 170) a needle (p 179); metallic FB x 2 (p 249) 2 needles present (p 285), 2 metallic foreign bodies ( p 286), foreign objects x 2 and 2 needle like objects (p 292), two broken needle fragments (p 376), broken insulin needles (p 405), 2 x needles in left arm from diabetes ( p 412), two broken insulin needles stuck in arm and foreign bodies from his shoulder (p 416), needle fragments left shoulder (p 418).

Absent the object's removal and testing to determine their true nature the Court is left to speculate as to what the objects are and how and when they first appeared in claimant's left arm. In the absence of testimony from the claimant the Court is unable to find that the presence of the objects is attributable to the negligence of the defendant's employees or agents as opposed to some other cause. The Court is not satisfied that claimant has met his burden on either the second ( i.e., exclusive control) or third (i.e., lack of claimant's voluntary conduct) required elements necessary to establish negligence based on res ipsa loquitur.

Defendant's motion to dismiss the claim for claimant's failure to prove a prima facie case based on either common law negligence or res ipsa loquitur is therefore granted. The Clerk shall enter judgment in accord with this decision.

October 11, 2005
Saratoga Springs, New York

Judge of the Court of Claims

[1]Claimant's ambulatory health records (see claimant's Exhibit 1) contain no evidence regarding X ray results (see p. 48). Page 47 of that Exhibit, dated 6/5/01, indicates X ray of left arm completed and notes the presence of "a needle inside of muscle."