Claimant seeks to recover damages for personal injuries allegedly sustained as
a result of the failure of Department of Correctional Services (DOCS) medical
personnel to properly and timely diagnose claimant's prostate cancer. The trial
of the claim was held at Great Meadow Correctional Facility on October 3,
Claimant was the sole witness at trial and testified in substance as follows:
In 2001 after experiencing difficulty urinating claimant sought medical
attention at Great Meadow Correctional Facility. He was given Flosak to
facilitate urine flow but reported feeling dizzy after taking the medication.
Claimant was told dizziness was a common side effect of the medication. Dr.
Smith ordered a PSA exam which was later reported to be negative.
Claimant was subsequently sent to Albany Medical Center and the DOCS Regional
Medical Facility at Coxsackie where he alleged a procedure revealed scar tissue.
He also reported undergoing surgery on his colon on October 16, 2001.
Claimant testified that three weeks after his transfer to Green Haven
Correctional Facility on November 4, 2001 he was advised that he had terminal
cancer. Claimant was transferred to Great Meadow on November 27, 2001 and tests
conducted at Albany Medical Center, including a radioactive scan and MRI, proved
positive for prostate cancer. Multiple tests and a biopsy conducted over the
next 1 ½ years supported the conclusion that claimant, in fact, had
The claimant was transferred to Malone, presumably to Upstate Correctional
Facility in June, 2003. He testified that the doctor who conducted his intake
medical examination ordered a second biopsy and advised claimant that he did not
have cancer. However, following a subsequent medical examination at Clinton
Correctional Facility claimant was again allegedly advised that he had
No medical records were offered in evidence to corroborate claimant's
testimony. Defendant did not cross-examine the witness but moved to dismiss the
claim based upon claimant's failure to produce any expert medical testimony to
establish that the defendant's actions departed from the relevant standard of
care and that such departure was a proximate cause of claimant's injuries.
"When the State provides medical care it is held to the same standard of care
as private individuals and institutions engaging in the same activity (
Schrempf v State of New York
, 66 NY2d 289, 294)" (Konstantides v State
of New York
, Ct Cl, April 28, 2000 [Claim No. 98151, UID # 2000-007-509],
Bell, J., unreported
). To establish a claim
based upon inadequate medical care claimant must prove a departure from the
accepted standard of care in the community (Hoagland v Kamp
, 155 AD2d
148, 150) and that the departure was a proximate cause of his or her injury
(Brown v State of New York
, 192 AD2d 936, lv denied
Here claimant offered no competent medical evidence either from his treating
physicians or from an expert whose opinion could have been based on available
medical records. Absent such evidence "claimant's own unsubstantiated
assertions and speculations were insufficient to establish merit and a prima
facie case (
see Wells v State of New York
, 228 AD2d 581; Mosberg v
, 176 AD2d 710, affd
80 NY2d 941; Quigley v Jabbur
AD2d 398)"(Williams v State of New York
, Ct Cl., September 17, 2004
[Claim No. 101370, UID # 2004-010-024], Ruderman, J.,
Accordingly, defendant's motion to dismiss the claim is granted. Let judgment
be entered in accord with this decision.