New York State Court of Claims

New York State Court of Claims

CARTER v. THE STATE OF NEW YORK, #2006-013-510, Claim No. 104863


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: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 22, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


In this pro se claim filed on September 7, 2001, Claimant alleges that he was denied proper medical treatment at Wende Correctional Facility (Wende) for a foot ailment between January 31, 2001, his first complaint, and August 8, 2001, when he received certain orthotics for his medical condition. He seeks damages in the amount of $18,600.00 for his pain and suffering during the period in question. While the claim purports to allege "negligence of a medical nature" and asserts that there was "endemic and systematic indifference" to his legitimate medical complaints, it is necessary for me to discern whether the claim sounds in medical malpractice or medical negligence.

Before examining the legal distinctions between the two theories, a brief recitation of the circumstances here will prove helpful. Claimant's testimony, his ambulatory and other medical records (Exhibits A and B) and the review thereof by the Defendant's witness, Dr. Mary Elizabeth Clemens, the medical director at Wende, provides an undisputed chronology, much but not all of which is recited below. Claimant, who was housed in the Special Housing Unit (SHU) at Wende at all pertinent times herein, first complained about pain in his feet on January 31, 2001. On February 7, 2001, an x-ray of his feet was ordered, the result of which was normal, no bony spurs, etc. Dr. Clemens described the routine procedures for medical care in SHU where a nurse made rounds of the inmates on a daily basis and a physician made weekly rounds. The next notation on February 14, 2001 reported no complaints by Claimant on SHU rounds. Treatment continued with anti-inflammatory nonsteroidal medications, which function not only to reduce pain, but also to treat the cause of the inflammation. On March 8, 2001, a diagnosis of plantar fasciitis was noted in the ambulatory health record by a physician, with a notation indicating a referral to a podiatrist was to be made. On March 21, 2001, there was a change of medications to naproxen. On March 26, 2001, the referral for consultation with a podiatrist is noted, and an appointment was scheduled for May 2, 2001. On March 28, 2001, there were no complaints on SHU rounds. On April 2, 2001, during the nurse's SHU rounds, Claimant complained of foot pain and was referred for physician rounds. On April 4, 2001, Claimant saw a physician and his medication was changed to indocin. On April 11, 2001, there were no complaints on SHU rounds. Then, on April 12, 2001, in response to Claimant's complaint of foot problems, a staff nurse examined his feet and found them pink and healthy, with the ability to move all digits without difficulty, with no redness and no swelling observed.

On May 2, 2001, at his consultation with a podiatrist, there was a written diagnosis of plantar fasciitis and flat feet with a valgus deformity bilaterally, and his feet were casted for functional foot orthotics (personalized and uniquely designed shoe inserts), with a recommendation to continue nonsteroidal medications. On May 4, 2001, the record notes the podiatrist's May 2 report, and that they would await fabrication and arrival of the orthotics for distribution to Claimant. On May 9, 2001, there was another change in the medications to feldene. On May 14, 2001, Claimant complained of foot pain to the nurse and requested stronger pain medications and to see the doctor. On May 16, 2001, a doctor performed rounds but Claimant made no complaints. On June 13, 2001, the physician changed the medications again, from percogesic, which had been ordered on May 30, 2001, to trilisate, another anti-inflammatory nonsteroidal medication. On June 29, 2001, Claimant was given bio-orthopedic inserts for his boots or sneakers. On July 3, 2001, Claimant was given a pair of special boots for his size ten insoles, because the insoles were loose and moving around in his sneakers. On August 8, 2001, Claimant was provided with full-size insoles, size ten, the orthotic devices from his May 2, 2001 podiatric consultation.

Dr. Clemens offered her professional opinion as a licensed medical doctor that it was good and accepted medical practice to initially treat such foot complaints with medications and see how the patient responds. It is also good and accepted medical practice to prescribe different kinds of anti-inflammatory nonsteroidal medications, as individuals respond differently to such medications. It was also her opinion that the medical staff never deviated from accepted standards of good medical care.

The essence of this claim is that Claimant allegedly was not diagnosed quickly enough from his first complaint and that it took an extended period of time for him to receive his orthotic devices. At the conclusion of Claimant's testimony and after he had rested, the State moved to dismiss the claim on the grounds that Claimant had failed to prove a prima facie case of medical malpractice, as there was no expert testimony setting forth the applicable standard of care and no expert testimony to demonstrate a deviation from that standard. I granted the motion and dismissed that part of the claim which sounds in medical malpractice. In addition, Defendant moved to dismiss any claim that could be construed as sounding in medical negligence on the grounds that there was no proof that any adverse effect was caused by any negligence on the part of the State. I reserved decision as to that part of the claim sounding in medical negligence, to review the medical records and to hear the testimony. Now, after such consideration, that part of the motion seeking to dismiss any claim sounding in medical negligence is granted.

Initially, it was necessary to determine whether Claimant's allegations were based on a theory of medical negligence or on a theory of medical malpractice. The theory of medical negligence is relegated to cases where the alleged negligent acts are readily determinable by the trier of fact based on common knowledge. However, when the propriety of the treatment received is called into issue, the more specialized theory of medical malpractice is applicable (
Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256; Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804).
In a medical malpractice case, Claimant has the burden of proving that the medical provider did not possess or did not use reasonable care or best judgment (
Hale v State of New York, 53 AD2d, 1025, lv denied 40 NY2d 804, supra). Moreover, the Claimant has the burden of proving a deviation from accepted standards of care and must produce evidence that the deviation was a proximate cause of the injury sustained. To meet this burden and to make a prima facie case of medical malpractice, Claimant is required to present expert medical testimony (Macey v Hassam, 97 AD2d 919; Kennedy v Peninsula Hosp. Center, 135 AD2d 788). Since Claimant did not do so, the claim for medical malpractice was dismissed.
Medical negligence, in essence, alleges negligent omissions or commissions by State caregivers which can be readily determined by the fact finder using common knowledge without the necessity of expert testimony. However, this theory is limited to "those cases where the alleged negligent act may be readily determined by the trier of the facts based on common knowledge" (
Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256, supra). Such cases have involved scalding a patient with a hot water bottle (Phillips v Buffalo General Hospital, 239 NY 188), leaving an electric light bulb under the sheets (Dillon v Rockaway Beach Hospital, 284 NY 176), leaving a postoperative patient unattended in a bathroom (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256, supra), and other similar circumstances.
The entire thrust of Claimant's proof, trying to establish that perhaps there was no physical examination of his feet prior to the prescription of certain medications for the one-month and five-day period between his first complaint on January 31, 2001, and the documented diagnosis of plantar fasciitis on March 8, 2001, addresses the manner of a physician's medical treatment and diagnosis. Dr. Clemens noted that the March 8, 2001 record notes that Claimant's plantar fasciitis was not responding to the medications. This of course presupposes a pre-existing diagnosis of plantar fasciitis. To the extent that there was testimony concerning the period of time between the date of the referral and the date of the consultation with the podiatrist, and the period of time after the casting of his feet until the orthotics were provided, all involve issues of professional medical expertise. Specifically, as Dr. Clemens testified, this was not an instance of an acute or life-threatening medical condition which would have invoked a more expedient response. Here, the chronology of medical interventions responding to the Claimant's complaints about his feet, reflect ongoing and continuous medical treatment of a nonacute medical condition. The medical staff promptly and continuously adjusted Claimant's medication to address both his pain and the inflammation.

Whatever Claimant's complaints are in this regard, they sound in allegations of medical malpractice, not medical negligence, as the protocols for examination and the administration of medications inherently requires the expertise of a physician. The issues in question do not involve matters within the common knowledge of this Court, but call into question the propriety of the treatment given. As a result, this cause of action must be characterized as sounding in medical malpractice rather than in medical negligence (
Armstrong v State of New York, 214 AD2d 812, lv denied 86 NY2d 702). As indicated above, a medical malpractice cause of action requires expert testimony. No such expert medical testimony was presented, and thus Claimant has failed to establish a prima facie case of medical malpractice.
Even if part of this claim could be construed as containing allegations based upon medical negligence, I find the proof lacking in this regard as well. There was nothing in the evidence to establish negligence on the part of the medical care providers, or to establish that anything done or not done by the medical care providers caused, contributed or worsened Claimant's medical condition or caused him any compensable damages.

Accordingly, the State's motion to dismiss, part of which was granted and part of which was reserved at trial, is now granted in its entirety and the claim is dismissed.

All motions not heretofore ruled upon are now denied.


March 22, 2006
Rochester, New York

Judge of the Court of Claims