New York State Court of Claims

New York State Court of Claims

ORTIZ v. THE STATE OF NEW YORK, #2005-030-015, Claim No. 106784


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:
Third-party defendant's attorney:

Signature date:
May 31, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Hernando Ortiz, the Claimant herein, alleges in Claim number 106784 that Defendant's agents failed to provide him with adequate medical care while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was held on April 29, 2005.

As an initial matter, Defendant moved to dismiss the Claim based upon its fifth affirmative defense, arguing that the Court lacked jurisdiction because Claimant had failed to serve the Claim upon the Office of the Attorney General either personally or by certified mail, return receipt requested as required. The Assistant Attorney General indicated that their office was served with the Claim by regular mail on September 30, 2002, and produced the envelope in which the Claim was received showing no markings or postage indicating that the article had been sent by certified mail, return receipt requested. In a letter to the Clerk of the Court dated October 7, 2002, that is attached to the copy of the Claim filed with the Court on October 11, 2002, Claimant indicates he is enclosing the claim with an application for a reduced filing fee, and that "[a] copy of said application has been served upon the attorney general (
sic) office via certified mail." [See attachment to Claim No. 106784]. A photocopy of a return receipt showing receipt by the Attorney General's Office of something on October 22, 2002, is also attached. [ibid.]. Claimant could not say why there was a discrepancy in dates, and indicated he would check his records if he could, but because he was currently in restricted housing he had none of his property. He thought, however, that he had indeed served the Claim as required. Because of the confusion, the Court reserved decision on the Defendant's motion, and Claimant was given an opportunity to provide the Court within two (2) weeks of the trial date or by May 13, 2005, with proof that he had served the Claim by certified mail, return receipt requested as required.
As of today's date, the Court has not received proof of such service and, accordingly, is not convinced that the Claim was served as required.

The filing and service requirements contained in §§10 and 11 Court of Claims Act are jurisdictional in nature and must be strictly construed.
Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989). Service upon the Attorney General by ordinary mail is insufficient to acquire jurisdiction over the State, as is mail service by any means other than certified mail, return receipt requested, unless the State fails to properly plead jurisdictional defenses or raise them by motion. Court of Claims Act §11(c); Edens v State of New York, 259 AD2d 729 (2d Dept 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998). Additionally, the Claimant has the burden of establishing proper service. Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the Defendant. 22 NYCRR § 206.5(a).
Here, the State's Verified Answer pleaded this defense with particularity, preserving the issue for review, and Claimant has not established service as required. Accordingly, for these reasons alone the Claim should be dismissed.

More substantively, Claimant testified[1]
concerning his claim of inadequate medical care. He indicated that in 1997 he started suffering from problems in his feet, and had surgery on his right foot at Sing Sing[2]. After his second operation at "St. John's Hospital",[3] he said that he was made to walk on the foot immediately thereafter by Sing Sing personnel transporting him back to the facility. When he arrived at the facility, he was placed in a wheelchair, but there were no ramps, so personnel dragged him up the stairs to the facility hospital. He said he was treated "inhumanely" throughout his medical treatment for his feet.
On cross-examination, he could not say how he got the injury, but the problem began in 1996. He could not say that he was injured playing soccer, but agreed that he has what is known as "turf toe" from playing soccer.

The Claim itself is a little more detailed in terms of what Claimant alleges are his injuries, and how they were the result of Defendant's negligence. He alleges that after the surgery performed at the facility on May 24, 1999, he was not given more than a two-day supply of pain relievers, although he was still in pain and asked for relief. He alleges that he had additional surgery on his left foot at St. Agnes Hospital on April 16, 2001, to treat "Fibroma symptoms" but continued to suffer pain and be denied treatment by medical personnel at Sing Sing. [Claim No. 106784, ¶¶ 5, 6]. He asserts in the Claim that On May 23, 2001, Dr. Perilli had outlined Claimant's health needs, specifically indicating that Claimant should receive proper fitting shoes and orthopedic inserts. [
ibid. ¶9]. The Claim states he did not receive the proper shoes, and ultimately utilized the grievance procedure to complain. [ibid. ¶¶ 11and 13]. On August 9, 2002, he had surgery at St. Agnes Hospital on both of his feet. [ibid. ¶14]. Thereafter, according to the Claim, he was made to walk from the hospital exit to the prison van without assistance, as he testified to at trial. [ibid. ¶ 15].
In any event, Claimant presented no evidence other than his own testimony in support of his claim and, therefore, failed to establish a
prima facie case under all theories of liability asserted in his claim.
It is "fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons," including proper diagnosis and treatment.
Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied 76 NY2d 701 (1990).
In a medical malpractice claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A Claimant must establish that the medical care giver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. The " ‘claimant must [demonstrate] . . . that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his . . . injuries' (
Parker v State of New York , 242 AD2d 785, 786)." Auger v State of New York, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept 1976), lv denied 40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).
If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State's employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony.
Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for ministerial neglect if its employees fail to comply with an institution's own administrative procedures and protocols for dispensing medical care to inmates. Kagan v State of New York, 221 AD2d 7, 10 (2d Dept 1996).
Defendant called Dr. John Perilli, the Medical Director at Sing Sing, employed at the facility since December 1999 to testify for the Defendant after Claimant presented his case. Dr. Perilli stated that he had been practicing medicine for over thirty (30)
years, and had reviewed Claimant's medical record admitted in evidence as Exhibit A. After such review, Dr. Perilli indicated that the records showed that a consultation was conducted on May 24, 1999, involving an excisional biopsy of the right foot by the facility physician. A benign lesion, or fibroma, was revealed by the biopsy. Dr. Perilli stated that a fibroma is essentially a collection of scar tissue. Thereafter, Claimant received his routine care as well as care upon his complaints at sick call. Claimant was reevaluated, October 20, 2000, and surgical excision was recommended. Two more surgeries were undertaken at outside hospitals, and appropriate aftercare was given, as suggested in postoperative care notes according to Dr. Perilli. In immediate postoperative care, he would not be allowed to bear weight for approximately four (4) weeks without crutches or other implements. Dr. Perilli said that the record shows that crutches were provided. He also said that recurrence is expected with such injuries. Once the lesion is excised, it usually recurs. Dr. Perilli himself prescribed custom boots to prevent recurrence, which were received on August 13, 2001. Dr. Perilli opined that the treatment given was not a departure from accepted medical treatment for Claimant's medical condition. He said Claimant received reasonable and adequate medical care for his condition, without any effective delay. He pointed out that consultations take time, as does the scheduling of surgeries or other treatment to be provided at an outside hospital.
No other witnesses testified and no other evidence was admitted.

It is Claimant who has the burden of proof to establish his claim. On his direct case, only the testimony of the Claimant was presented in support of any claim of malpractice. No competent medical evidence was presented on Claimant's direct case, through a treating physician or an expert witness whose opinion was based upon the available medical records, to support the allegation of medical malpractice. There was no medical evidence on any medical issue and thus no proof that accepted standards of care were not met. Accordingly, the claim of medical malpractice must be dismissed.

Additionally, from the record on Claimant's direct case there is no indication that the actions of medical care givers amounted to simple negligence or ministerial neglect.
Coursen v New York Hospital-Cornell Med. Center, supra; Kagan v State of New York, supra; cf. Jacaruso v State of New York, Claim No. 97721 (Lebous, J., filed September 9, 2002). To the extent the claim can be read to assert such theories, any cause of action for negligence or ministerial neglect is also dismissed.
Claim Number 106784 is hereby dismissed in its entirety because the Court lacks jurisdiction over the claim, and because Claimant has failed to establish a
prima facie case.
Let judgment be entered accordingly.

May 31, 2005
White Plains, New York

Judge of the Court of Claims

[1] Claimant requested the services of a Spanish interpreter, and testified for the most part using such services. The interpreter translated whatever was said by the Court, or the Attorney General as well.
[2] In the Claim, he indicates that surgery was performed on his right foot on May 24, 1999.
[3]All quotations are to trial notes or audiotapes unless otherwise indicated.