New York State Court of Claims

New York State Court of Claims

RUSSO v. THE STATE OF NEW YORK, #2006-013-521, Claim No. 105954


Synopsis


There was no evidence to support, let alone establish, medical malpractice or medical negligence on the part of the medical care providers, or to establish that anything was done or not done by the medical care providers that caused, contributed to or worsened Claimant’s medical condition or caused him any compensable damages. Accordingly, this claim for medical malpractice/negligence is dismissed.

Case Information

UID:
2006-013-521
Claimant(s):
CARMEN RUSSO
Claimant short name:
RUSSO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105954
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant’s attorney:
CARMEN RUSSO, Pro Se
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 21, 2006
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In Claim No. 105954, filed on April 23, 2002, Claimant seeks damages for negligent acts of misconduct and deliberate indifference to his medical needs and medical malpractice by Dr. David O’Connell and Deputy Superintendent for Health Services Sue Post, while he was an inmate at the Wende Correctional Facility (Wende).
Claimant initially was injured on or about September 20, 2000, picking up a 55-gallon barrel full of recyclable cans and plastic bottles, and he felt a “pop” in his back. He went to sick call on October 10, 2000 and did not see a physician until October 31, 2000, when he was given medications and x-rays which were negative. He saw a physician on December 4 and December 8, 2000, when he was advised that an MRI would be ordered, and which eventually occurred on March 3, 2001. On or about March 19, 2001, Claimant went to the Erie County Medical Center (ECMC), where a CAT scan was ordered and then performed on April 4, 2001. Eventually, on September 25, 2001, Claimant underwent surgery.
The claim alleges an accrual date of September 28, 2001 “at approximately 9:00 am on the ninth floor of ECMC when Dr. Lifeso explained the injuries and what was needed to repair them.” Claimant argues that this claim concerns itself with pre- and post-surgical medical care and treatment following the initial injury which occurred on September 20, 2000. The Defendant objects to consideration of any allegations relating to medical care and treatment prior to the date of accrual alleged in the claim of September 28, 2001. Regardless, my finding below makes that issue academic and moot.
The Court’s file herein reflects previous motion practice, including three applications for poor person status and the assignment of counsel (Motion No. M-65273, filed October 17, 2002; Motion No. M-68014, filed May 17, 2004; and Motion No. M- 71969, filed September 1, 2006), all of which were denied. Claimant also sought the appearance at trial of numerous witnesses in Motion No. M-71970, filed August 30, 2006, each of whom was addressed in that decision and order. Two witnesses who were sought by Claimant, Deputy Superintendent for Health Services Sue Post, and Dr. Jacqueline Levitt, Facility Health Services Director at Wende, appeared and testified at the trial conducted on October 5, 2006. At the conclusion of the trial on October 5, 2006, decision was reserved.
Thereafter, in ex parte correspondence received by the Court on October 12, 2006, Claimant made a post-trial submission, including what was characterized as copies of certain “correct medical treatment sheets.” This post-trial submission is emphatically rejected in its entirety. First, the trial was concluded and all the witnesses’ examination and cross-examination were completed. Moreover, Claimant failed, either intentionally or by oversight, to provide a copy of his post-trial submission to the Defendant, with its accusations of intentional deceit and alleged manipulation and intentional withholding of documents by Deputy Superintendent Post, Dr. Levitt and Defendant’s counsel. It has not been considered by the Court.
The claim herein alleges damages:
“...due to the negligence and malpractice of Dr. O’Connell and Dep. Post... for continually delaying or refusing Claimant medical treatment. Due to this [Claimant] sustained serious medical complications, extended injuries and undue pain and suffering that directly stemmed from the delays in the diagnosis, refusal to treat the medical needs when diagnosed, and the regiment [sic] of constantly changing medications to mast [sic] the injury and cause further complications and pain.”

Claimant went into great detail describing his medical care and treatment, and the pain and discomfort that he endured, and his frustration with his condition. However, whether Claimant’s allegations are based on a theory of medical negligence or on a theory of medical malpractice, the claim must be dismissed.
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).
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 Gen. Hosp. 239 NY 188), leaving an electric light bulb under the sheets (Dillon v Rockaway Beach Hosp., 284 NY 176), leaving a postoperative patient unattended in a bathroom (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, supra), and other similar circumstances.
Whatever Claimant's complaints are, any assessment of his medical complaints and treatment 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.
Needless to say, the testimony of Dr. Levitt, a physician in the employ of the Defendant, did not acknowledge, support or admit any deviation from accepted standards of care. Indeed, no such expert medical testimony was presented, and thus Claimant has failed to establish a prima facie case of medical malpractice. Since Claimant did not do so, the claim for medical malpractice is dismissed.
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.
While I am empathetic to the pain and discomfort that Claimant testified he endures on a daily basis, there is nothing in the evidence before me that establishes any negligence or malpractice by the Defendant or the medical care providers.
Accordingly, the claim must be, and hereby is dismissed in its entirety.
All motions not heretofore ruled upon are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.

December 21, 2006
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims