New York State Court of Claims

New York State Court of Claims

PURCELL v. THE STATE OF NEW YORK, #2006-016-065, Claim No. 107359


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):

Alan C. Marin
Claimant’s attorney:
Michael Purcell, Pro se
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Dewey Lee, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 6, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the trial of the claim of Michael Purcell, who alleges that he became ill because of bacteria in the Otisville Correctional Facility water supply. Mr. Purcell further alleges that he received inadequate medical treatment for such condition.
Purcell testified that when he first arrived at Otisville in 1996, he was relatively healthy and had no medical problems. Then in 1997, he began to suffer from stomach pain that he described as acute. He was treated with various medications including Maalox, and underwent a number of diagnostic tests including sonograms, the results of which were negative. Claimant explained that as his symptoms continued, “I’d wake up in the middle of the night and the pain would be so . . . terrible, I couldn’t go back to sleep and I’d just be sitting up there rocking, and . . . I didn’t know what to do . . . the . . . medical department said they couldn’t do [anything] for me . . .”
Claimant recalled that at some point, he “learned that there was something wrong with the water, that they had found worms . . . I started reading this memorandum they had on the board about [the bacterium H. pylori].” He then returned to sick call to report that his symptoms were the same as those described in the memo and as a result, he was given a test for H. pylori, which he said came back positive, with a 1.99 reading.

Purcell testified that he was then put through a “ten day protocol” in which he was given antibiotics and other medications, but after ten days, saw no improvement in his condition. At that point, he submitted a grievance because, according to claimant, “they knew there was something wrong with the water a long time ago because they had brought in some tankers and they had talked about the red worms in the water . . .” The Superintendent’s response was as follows: “Grievant is receiving proper medical care at Otisville . . . Facility water is tested monthly at random areas . . . Test results show water is safe for human consumption . . .” See claimant’s exhibit 1.
Claimant then appealed the decision to the Central Office Review Committee, which “[upheld] the determination of the Superintendent . . . CORC notes that the grievant has been evaluated in the past for similar complaints as far back as 1998. Contrary to the [grievant’s] assertions, CORC has not been presented with sufficient evidence that the grievant contracted H. pylori from the water system at Otisville Correctional Facility . . .” Id.
* * *
Aside from Purcell’s own view, he presented no evidence as to contamination of the Otisville Correctional Facility Water supply. Nor did he present expert medical/scientific testimony as to what brings about a positive test result for H. pylori, or what symptoms, if any, are caused by such bacterium. As to his claim alleging inadequate medical treatment, in order to prevail, he would be required to present expert testimony that there was a deviation from accepted standards of medical care which proximately caused him injury, which he failed to do. See, e.g., Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814, 681 NYS2d 475 (1998). For the foregoing reasons, claim no. 107359 is dismissed.

October 6, 2006
New York, New York

Judge of the Court of Claims

  1. [1]Claimant submitted medical records (exhibit 1) which include laboratory reports for four H. pylori tests. Such records indicate that a result of less than .89 units is negative, .89 to .99 units is “equivocal,” and greater than .99 units is positive. A December 5, 2001 result was 1.99 units; a February 20, 2002 result was 1.48 units; an October 16, 2002 result was 1.00 units; and an April 2, 2003 result was .83 units.