New York State Court of Claims

New York State Court of Claims

LEE v. STATE OF NEW YORK, #2006-018-542, Claim No. 111408


Synopsis


The claims is dismissed - Claimant has failed to establish a prima facie case

Case Information

UID:
2006-018-542
Claimant(s):
EDDIE JAMES LEE, SR.
Claimant short name:
LEE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111408
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
EDDIE JAMES LEE, SR.Pro Se
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: THOMAS M. TRACE, ESQUIRESenior Attorney
Third-party defendant’s attorney:

Signature date:
December 5, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

This claim alleges that Claimant was denied the proper footwear as prescribed by his podiatrist while he was incarcerated at Gouverneur Correctional Facility (hereinafter GCF). Claimant testified that in October 2004, he was seen by doctors at Auburn Correctional Facility and Cayuga Correctional Facility who advised he needed medical boots and sneakers. He was then transferred to GCF before he obtained the boots. Thereafter, he was seen by a Dr. Pelletier, an outside specialist, who prescribed medical boots and sneakers, which Claimant testified he did not receive until June or July. Claimant said they did not fit his right foot.

In September 2005, Claimant was given a prescription for custom-made boots for which he was fitted in November 2005, and received on January 12, 2006. He testified that these boots also do not fit him properly.

Interestingly, Claimant used March 28, 2005, as the accrual date for this cause of action in his claim. The claim was verified on August 10, 2005. His medical records[1] indicate that Dr. Pelletier prescribed medical boots on June 17, 2005. Claimant had surgery on his right foot on July 26, 2005, and was unable to try on the right boot. Claimant received the boots on August 19, 2005. Claimant saw Dr. Pelletier again on September 23, 2005, at which time he was prescribed custom-made boots. On November 10, 2005, Claimant was fitted for the boots and on November 15, 2005, an invoice was sent to the facility for approval. Payment must be approved before Northern Orthopedic will make the boots. On January 12, 2006, Claimant tried his new boots, and according to the Northern Orthopedic Lab notes, he walked comfortably in them.

Nurse Brenda Tracy testified for the State about Claimant’s medical records as set forth above. She also explained that medical boots are pre-made, off the shelf items, and are not the same as custom-made boots. Dr. Pelletier initially prescribed medical boots which Claimant received, and then custom-made boots were prescribed and made. Claimant wore the custom- made boots at GCF in January.

The State owes a duty to the inmates in its correctional institutions to provide them with adequate medical care (Mullally v State of New York, 289 AD2d 308; Kagan v State of New York, 221 AD2d 7, 8).

The failure to provide medically prescribed equipment depending upon the circumstances may sound in negligence or medical malpractice. A claim sounds in medical malpractice when the alleged wrongdoing “constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician” (Bleiler v Bodnar, 65 NY2d 65, 72). “The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art 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 everyday experience of the trier of the facts” (Miller v Albany Med. Center Hosp., 95 AD2d 977, 978). The nature of the duty alleged to have been breached is key. Although the failure to provide prescribed medical boots after it is medically determined that such boots are necessary could be considered ordinary negligence. Here, Claimant complains that the boots he was given did not fit him properly and failed to alleviate his foot problems. Such a claim sounds in medical malpractice as it involves questions of medical judgment not within the knowledge of lay persons (what type of boot Claimant’s foot problem required, and proper fitting) (Compare Papa v Brunswick Gen. Hosp., 132 AD2d 601 [failure to prevent a medically recognized risk of harm]; Reardon v Presbyterian Hosp. in City of New York, 292 AD2d 235 [fall getting off examining table, no allegations improper assessment of medical condition rather mere failure to exercise ordinary care]; Huntley v State of New York, 62 NY2d 134 [failure to transmit to doctor patient plan for suicide, negligence]). Expert testimony is necessary to establish that the boots issued improperly fit and failed to meet Claimant’s podiatric needs. No such testimony was provided. What injury Claimant suffered as a result of the State’s alleged failure to provide Claimant with proper medical boots also was not established. As a result, Claimant has failed to establish a prima facie case. The claim is DISMISSED.

LET JUDGMENT BE ENTERED ACCORDINGLY.


December 5, 2006
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1].Exhibit A.