New York State Court of Claims

New York State Court of Claims

MATHIS v. STATE OF NEW YORK, #2005-018-483, Claim No. 109380


Claims is dismissed. Claimant failed to provide expert testimony.

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:
Defendant's attorney:
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 23, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, an inmate, filed a claim as a result of two separate incidents at Cape Vincent Correctional Facility. Claimant seeks damages from the State for medical malpractice, negligence, loss of consortium, deliberate indifference to serious medical needs, constitutional tort, and violation of the Administrative Procedure Act for the medical care he received at the facility infirmary for an ankle injury. He also seeks damages for personal injuries he sustained when he slipped and fell in the shower area. After hearing the evidence, the Court finds that the claim must be dismissed.
Medical Care Claim
Claimant testified that on July 18, 2003, he went to the infirmary complaining of left ankle pain. He had played basketball the night before and thought he sprained his ankle. He saw both a nurse and Dr. Brendis. In Claimant's ambulatory health record,[1]
the doctor noted that his Achilles tendon was sprained, not ruptured, but directed a follow-up visit be scheduled with Dr. Rosner the next week. Claimant, however, was not scheduled on the sick-call list and almost two weeks later, on August 4, he insisted on seeing Dr. Rosner. Between visits, Claimant testified, he was on his feet a lot working in the mess hall, as a table top worker, and was in pain. Claimant was examined by Dr. Rosner on August 4. Dr. Rosner diagnosed a sprain, noting Claimant's Achilles tendon was smooth. Claimant was given an Ace bandage, Ibuprofen, and a week off from work. Claimant was also offered a lower bunk assignment which he refused.
According to Claimant's ambulatory health records,[2]
he was seen again on September 5, 2003 and Dr. Rosner noted that there "now appears to be a ‘step-off' on palpating the Achilles tendon." The record from that day indicates Claimant told Dr. Rosner it was worse. Claimant was referred for an orthopedic evaluation. He was seen by Dr. Mina on September 16, 2003, who surgically repaired Claimant's Achilles tendon on September 17, 2003.
Claimant alleges the State initially misdiagnosed his injury and failed to obtain an orthopedic consult in a timely manner. Claimant asserts several theories for relief. Claimant has no cause of action for loss of consortium. Loss of consortium is a derivative cause of action which seeks to compensate the spouse of an injured party for the loss of the injured spouse's society and affection, deprivation of sexual relations and child-bearing opportunity (
Millington v Southeastern Elevator Co., 22 NY2d 498, 507). Claimant has also failed to establish a cause of action for deliberate indifference to his medical needs, which requires proof that a prison official knew of and disregarded a substantial risk to inmate health or safety (Tatta v State of New York, 19 AD3d 817). Here, the facility was providing Claimant regular access to medical services and the medical providers were actively treating Claimant's presenting medical condition. There was no deliberate indifference. Claimant also has not established a cause of action for constitutional tort. No constitutional tort claim lies where an alternative remedy exists (Bullard v State of New York, 307 AD2d 676, 678). Here, the facts as alleged by Claimant assert a medical malpractice cause of action; as a result, there can be no constitutional tort relief. Finally, Claimant has not shown any violation of administrative procedure.
Since the basis of Claimant's allegations is the failure of the Defendant to correctly diagnose his medical condition and provide timely and appropriate treatment, this is a claim for medical malpractice and not simple negligence (
Berger v State of New York, 171 AD2d 713). Whether Defendant doctors deviated from the standard of care in diagnosing Claimant's presenting condition on July 18, 2003 and August 4, 2003 as a sprain requires expert medical testimony (Tatta,19 AD3d at 817). It is outside the realm of common knowledge what presenting symptoms would indicate a torn Achilles tendon rather than a sprain and whether, based upon those symptoms, the Defendant doctors failed to provide the appropriate standard of care. Claimant presented no expert testimony and, as a result, has failed to establish medical malpractice.
Slip and Fall Claim
Claimant testified that on October 15, 2003, he had his leg in a cast, and he had another inmate move a chair into the shower area to allow him to shower sitting down. When finished, he got up and started hopping out of the shower area. He slipped and fell injuring his back. He was carried to the infirmary on a stretcher and was in excruciating back pain.
Claimant still has pain in his back. Occasionally, while receiving physical therapy for his tendon injury, the therapist applies a hot pack to the area on Claimant's back. He has been requesting physical therapy for his back since June 8, 2004, but has not received it.

Claimant filed a grievance relating to his fall requesting medical bars and handicap seating in all housing units. The response indicated that Claimant was offered admission to the infirmary which is equipped with a handicap shower but he refused it.[3]

The State has the duty to maintain its property in a reasonably safe condition (
Preston v State of New York, 59 NY2d 997). The State, however, is not an insurer of the safety of its inmates and negligence will not be inferred solely from an accident occurring (see Killeen v State of New York, 66 NY2d 850; Condon v State of New York, 193 AD2d 874). To establish liability, Claimant has the burden to show that the State either created or had actual or constructive notice of a dangerous condition which it failed to correct and which was the proximate cause of Claimant's injuries (see Gordon v American Museum of Natural History, 67 NY2d 836; Dapp v Larson, 240 AD2d 918).
From the evidence, there is no indication that this shower area was in a dangerous condition. There was no proof that the absence of medical bars, handicap seats, or sandpaper floor strips made the area dangerous for normal use or that such equipment was otherwise required. There was no proof of other slip and falls at this location. It is more likely Claimant's fall was attributable to him hopping out of the wet shower than any defect in the area itself. To accommodate Claimant's temporary handicap needs he was offered use of the infirmary shower which is fully handicap equipped. There is no evidence the State was negligent.

To the extent Claimant also is making a claim of medical malpractice for failing to order physical therapy for his back injury, he has failed to establish through expert testimony that physical therapy was necessary and appropriate to meet the standard of care (
Tatta,19 AD3d at 817).
The claim must be dismissed in its entirety. LET JUDGMENT BE ENTERED ACCORDINGLY.

August 23, 2005
Syracuse, New York

Judge of the Court of Claims

[1]Exhibit A.
[2]Exhibit A.
[3]Exhibit B.