New York State Court of Claims

New York State Court of Claims

RIVERA v. STATE OF NEW YORK, #2006-018-537, Claim No. 110600


The claim is dismissed. The legitimate reasons for the five-month delay in scheduling Claimant’s surgery do not involve negligence.

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: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 30, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages from the State for failure to timely schedule surgery for a right-shoulder injury. Claimant attributes the delay to a State employee negligently placing the wrong code number on the document used to schedule the medical appointment. The code number used was for a consultation, not surgery.
At the time, Claimant was incarcerated at Cape Vincent Correctional Facility (hereinafter CVCF) and was suffering from severe shoulder pain. He was taken to see Dr. George Mina, an orthopedic specialist, who gave him injections for the pain. The procedure relieved Claimant’s pain for a short time, and Dr. Moehs, the facility doctor, requested another appointment for Claimant with Dr. Mina. On September 15, 2004, Dr. Mina recommended Claimant for surgery. Claimant testified that he signed the consent forms, and Dr. Mina told him he had an opening and the surgery could be performed in a couple of weeks. After two weeks passed and Claimant hadn’t been taken for surgery, he went to sick call twice. He learned that someone entered the incorrect number on the referral sheet.
Ultimately, the surgery was not performed until February 2, 2005, when Dr. Mina could again place him on the schedule.
Claimant testified the pain during this period was so severe he could not sleep. The infirmary gave him high doses of ibuprofen. He took it for about six weeks but worried about its effect on his liver and stopped. Since the surgery, Claimant has been relatively pain free and his range of motion is returning.
On cross-examination, Claimant acknowledged that he went to sick call on September 21, 2004, and again in mid-December for flu-like symptoms and foot problems. Also on cross-examination, Claimant acknowledged that he signed the consent forms on November 8, 2004, for pretesting scheduled for December 10, 2004; however, Claimant maintained that the original forms signed on September 15, 2004, were lost and he had to sign them again.
The State called Dr. Charles Moehs, the medical director at CVCF. He explained that whenever an inmate requires outside medical care, a request for a consultation has to be made and approved. The time it takes to get the approval depends on the type of care and the urgency of the situation. It also depends upon the availability of the outside doctor.
When a consultation request is made it must meet the review panel’s criteria or it will be returned for additional information. Delays can occur if insufficient or incorrect information is provided. After approval from the review panel is obtained, the outside physician is contacted and the appointment is scheduled. On average, it takes a month for the approval to be received. Dr. Moehs said that inmate illness can delay the process, especially when the outside procedure is surgery.
After reviewing the records pertaining to Claimant, Dr. Moehs testified that on September 15, 2004, Dr. Mina recommended surgery. The review panel requested additional information which was provided, and the application for Claimant’s surgery was received on October 27, 2004. Claimant had orthopedic visits during this period of time. Dr. Moehs said the Department of Correctional Services (hereinafter DOCS) in Albany coordinates the travel schedules to avoid conflicts which can also cause delays.
Claimant’s surgery was scheduled for December but because Claimant was ill, again, it had to be postponed. Dr. Mina was on vacation for the month of January. The surgery was finally performed on February 2, 2005.
The State has a duty to provide inmates in its correctional facilities with appropriate and adequate medical care (Kagan v State of New York, 221 AD2d 7; Rivers v State of New York, 159 AD2d 788).
Claimant argues that this is a case of negligence and that his surgery was delayed because of an incorrect code. Claimant astutely argues that this is a case of negligence not medical malpractice. The distinction between medical malpractice and ordinary negligence depends upon whether the alleged wrongdoing involves “a matter of medical service or are requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common every day experience of the trier of fact” (Russo v Shah, 278 AD2d 474, 475). When the conduct in question ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment’ the claim is one for medical malpractice, not common-law negligence (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788, quoting Bleiler v Bodnar, 65 NY2d 65, 72). An error in transcribing a treatment or medical condition code, as opposed to making the wrong diagnosis or prescribing the wrong treatment, would, as Claimant argues, be an issue of common law negligence. Here, however, the proof fails to establish that the delay in scheduling Claimant’s surgery was attributable to a clerical error. Rather, the evidence reflects the DOCS’ approval process, Claimant’s other illnesses, DOCS’ scheduling procedures, and Dr. Mina’s own schedule all contributed to the scheduling delay. These legitimate reasons for the five-month delay do not involve negligence.

November 30, 2006
Syracuse, New York

Judge of the Court of Claims

[1].See Exhibit 1.