New York State Court of Claims

New York State Court of Claims

HYNES v. THE STATE OF NEW YORK, #2006-015-541, Claim No. 107087


Claimant failed to provide expert testimony tending to show that his dental condition worsened as a result of delays in treatment by DOCS' dentists. Claim dismissed following trial.

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:
Chris Hynes, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Stephen Maher, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 31, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this claim took place at Great Meadow Correctional Facility (Great Meadow) Comstock, New York on November 17, 2005.
The claim filed on December 17, 2002 seeks damages of $10,000.00 "for ministerial neglect and negligence of the State committed by its employees in the dental unit and escort officers for causing unnecessary pain and suffering by failing to follow its own regulations, failing to provide adequate medical care and deviating from good and accepted dental practice from 1998 until the present time." Paragraph 4 of the claim suggests that the neglect or delay in treatment complained of occurred at Great Meadow although paragraph 7 indicates that a dental examination also took place on some unspecified date at Attica Correctional Facility. Paragraph 8 complains that the claimant has been denied dental treatment at Auburn, Great Meadow and Attica Correctional Facilities.
At trial claimant was the sole witness and his testimony was limited to delays in treatment encountered at Great Meadow. Although not presented in chronological order it appears, as alleged at trial, that claimant first requested dental care and treatment at Great Meadow on February 20, 2001
. Following his request, he received two memos dated 2/20/01 (see claimant's Exhibit 5). The first memo advised claimant that he would be seen in the dental unit at the earliest possible date. The second memo advised him that there was a 1 to 1 ½ month wait for a routine dental examination. He alleged that his ambulatory health record (Exhibit 2) demonstrates that he made additional requests for dental care while at sick call on May 14, 2001 and July 26, 2001.
Claimant was in the Special Housing Unit during the period beginning February 20, 2001. According to DOCS records (see claimant's Exhibit 3) claimant was called to appear at a dental clinic held on April 9, 2001 but was unavailable because he was on a visit. A memo dated May 15, 2001 was received by claimant indicating that he missed an appointment on April 9, 2001 and would be rescheduled for late May or early June 2001 (see claimant's Exhibit 5). Claimant did not see the dentist until July 31, 2001 at which time he was advised that he had cavities as well as a chipped tooth on the upper left which was trapping food and that additional treatment would be scheduled (see claimant's Exhibit 3). A further entry for July 31, 2001 states "curious lesion, symptoms indicate hyperergic pulp. Incomplete caries removal @ IRM as palliative dressing." Although Exhibit 3 contains no reference to further treatment, claimant asserted that he was informed by the dentist that he would be seen again in a month unless the medicated dressing caused an infection.
Despite a request made at sick call on September 3, 2001 claimant was not seen by the dentist until September 24, 2001 when he received a filling. On September 25, 2001 he reported to sick call complaining of a tooth problem and was advised to take Tylenol (see claimant's Exhibit 2).
Thereafter claimant's dental treatment record (Exhibit 3) shows that on November 14, 2001 claimant failed to appear for an operation noting "not escorted." Similar entries were made on December 13, 2001, March 7, 2002 and March 20, 2002. An entry dated January 17, 2002 states "resc[hedule] op[eration] - dentist @ training." Claimant testified that he received dental treatment on April 1, 2002. The Court here notes that although the entries made in claimant's dental treatment records for July 31, 2001 and September 24, 2001 both refer to tooth #13, the April 1, 2002 entry refers to tooth #20.
Upon questioning by the Court claimant insisted that he is not complaining of the dental treatment he received but, rather, is alleging that his cavities worsened due to the defendant's delay in treating them.
At trial claimant also sought to rely on DOCS Division of Health Services Policy regarding dental services (Exhibit 1). In particular claimant referred the Court to the "Treatment Priorities - Classification" section found therein at page 5. Claimant argued that the non-treatment of his initial class 2 problems caused them to worsen to class 3 problems which, in turn, resulted in increased pain.
On cross-examination claimant admitted that he is not a dentist and therefore cannot testify that any delay in treatment actually caused the alleged increase in classification of his condition(s) from class 2 to class 3. He further admitted that the failure to escort him from the SHU to the dental clinic on the dates specified in Exhibit 2 could have been due to security concerns which affected the availability of officers to perform escort duties.
The defendant offered no witnesses and produced no exhibits.
" 'While the State has a duty to render medical services to inmates without undue delay, in order for the State to be liable it must be shown that the delays in diagnosis and/or treatment were a proximate or aggravating cause of the claimed injury' (Marchione v State of New York, 194 AD2d 851, 854-855). Proximate cause is established if the deviation was a 'substantial factor' in producing the injury (Ford v United States, 2000 WL 1745044 [SDNY 2000], citing Perez v United States, 85 F Supp 2d 220)." (Zacchi v State of New York, Ct Cl, September 30, 2003 [Claim No. 102854, UID # 2003-032-520
] Hard, J., unreported). To recover claimant must "show that there was a 'substantial possibility' that his affliction was caused by the delay in treatment by the State and that the State's negligence deprived claimant of an appreciable chance of avoiding the loss suffered (Marchione v State of New York, supra; see also Brown v State of New York, 192 AD2d 936; Kimball v Scors, 59 AD2d 984; Kennedy v Peninsula Hosp. Center, 135 AD2d 788)" (Zacchi v State of New York, supra).
In order to establish a prima facie case claimant must "offer sufficient evidence from which reasonable minds could conclude that it is more probable that the injury was caused by the defendant than that it was not (Monahan v Weichert, 82 AD2d 102, 108)" (id.).
The instant claimant insisted at trial that his claim sounds in negligence relating not to the treatment he received but solely to the delays occasioned in obtaining treatment. However, it is almost universally accepted that determining the reasonableness of a delay in receiving medical or dental treatment and its effect upon a patient cannot be assessed based on the common knowledge and experience of the trier of fact but must be based upon the testimony of a medical or dental expert (see McFadden v State of New York, Ct Cl, June 16, 2004 [Claim No. 103390, Motion No. M- 68020, UID # 2004-032-049] Hard, J., unreported; DeFreitas v State of New York, Ct Cl, August 16, 2004 [Claim No. 104613, UID # 2004-030-024] Scuccimarra, J., unreported; Himko v State of New York, Ct Cl, June 21, 2005, [Claim No. None, Motion No. M-70169; UID # 2005-019-542] Lebous, J., unreported; Van De Mortel v State of New York, Ct Cl, September 22, 2000 [Claim No. 98475, UID # 2000-009-007] Midey, J., unreported; Green v State of New York, Ct Cl, February 9, 2005 [Claim No. 105372, UID # 2004-018-339] Fitzpatrick, J., unreported).
This trial record is devoid of expert proof that the delays which claimant experienced in obtaining treatment caused injury to his teeth or exacerbated his dental condition. The July 31, 2001 entry in claimant's dental treatment record identifies tooth #13 but does not indicate an ADA class for the tooth. Tooth #13 is not classified as ADA Class III until claimant's September 24, 2001 visit. It is therefore not possible to determine whether the two-month period between dental visits worsened or exacerbated claimant's dental condition relative to tooth #13. In any event, even if such a progression were shown expert testimony would be required to establish that any increased level of classification was in whole or in part attributable to the alleged delay in providing treatment. Additionally, the entry in claimant's dental treatment record for April 1, 2002 is largely illegible and cannot, therefore, be connected to any of the claimant's prior treatments. It is noted that the entry for April 1, 2002 in claimant's treatment record relates that he was treated for issues pertaining to tooth #20 and not tooth #13.
The claimant has failed to establish that he was injured as a result of delays in providing required dental care and the claim must, therefore, be dismissed.
The Clerk shall enter judgment in accord with this decision.

January 31, 2006
Saratoga Springs, New York

Judge of the Court of Claims

[1].Claimant made no mention at trial of delayed treatment at any other facility and the claims for such delays set forth in the claim are deemed abandoned.
[2].Unreported decisions from the Court of Claims are available via the internet at