New York State Court of Claims

New York State Court of Claims

ELLIOTT v. THE STATE OF NEW YORK, #2005-015-523, Claim No. 107879


Claimant's unsupported assertions and speculation regarding the untimely diagnosis of prostrate cancer not sufficient to sustain claim for medical malpractice.

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:
Jeffrey Elliott, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 7, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

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, 2005.

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 cancer.

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 cancer.

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[1]). 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 82 NY2d 654).
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 Elahi, 176 AD2d 710, affd 80 NY2d 941; Quigley v Jabbur, 124 AD2d 398)"(Williams v State of New York, Ct Cl., September 17, 2004 [Claim No. 101370, UID # 2004-010-024], Ruderman, J., unreported).
Accordingly, defendant's motion to dismiss the claim is granted. Let judgment be entered in accord with this decision.

November 7, 2005
Saratoga Springs, New York

Judge of the Court of Claims

[1]Unreported decisions from the Court of Claims are available via the internet at