This decision follows the trial of the claim of Jose Delvas, in which he
alleges that he was improperly treated for a skin condition while incarcerated
at Otisville Correctional Facility.
Claimant testified that while playing
ball in the Otisville recreation area, he “caught . . . Poison Oak,”
so he went to Sick Call and was given “A & D Ointment” for his
Mr. Delvas said that his condition worsened, after which he was given a
different ointment, and then Calamine Lotion, which alleviated his pain “a
little.” Delvas testified that after filing a grievance, he was taken to
see a specialist at Fishkill Correctional Facility who said, “Yes, you
have Poison Ivy.” He was given medication which helped, but six days
later, the skin condition returned. Laboratory tests were then done, the
results for which were “unknown disease.”
that he was next taken to Westchester Medical Center and Mount Vernon Hospital.
At the latter facility, he was given a cream that keeps his condition “at
bay,” although it “comes and goes.” Claimant noted that the
condition had spread to various parts of his body and that he was “scarred
Delvas maintained that if “they [had taken] care of
this problem when I first got it . . . instead of waiting . . . for months . . .
before they even thought about giving me a specialist, I believe I would never
[have gone] through this process.” He also contended that there should
have been warning signs or fences to prevent him from coming into contact with
the plants which caused his condition.
“It is well settled that the
State owes a duty to its incarcerated citizens to provide them with adequate
medical care.” Kagan v State of New York
, 221 AD2d 7, 8, 646 NYS2d
336, 337 (2d Dept 1996). However, in order to prevail in a case such as this,
claimant would be required to present expert testimony that there was a
deviation from accepted standards of medical care which proximately caused him
injury, which claimant failed to do. See, e.g., Lyons v McCauley
AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied
92 NY2d 814, 681 NYS2d
475 (1998). As to a lack of warning signs or fences, Delvas’ claim
contained no allegations as to same. In any event, his limited testimony was
insufficient to demonstrate any negligence on the part of defendant. For the
foregoing reasons, claim no. 110027 is dismissed.
LET JUDGMENT BE ENTERED