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
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
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
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
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
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,
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
, 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.
NY2d 489, 494 ; Babits v Vassar Bros. Hosp.
, 287 AD2d 670, 671
)" (Rosales- Rosario v Brookdale Univ. Hosp. & Med. Ctr.
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
115). * * * [T]he burden remains with the plaintiff to prove the defendant's
negligence by a preponderance of the credible evidence" (States v Lourdes
, 188 Misc 2d 420, 425, revd
297 AD2d 450, revd
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]" (
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