1. Notice of Motion and Supporting Affirmation of Kevan J. Acton, AAG
2. Affidavit in Opposition of Jessie Velez, pro se
Filed papers: Claim; Answer
By this Claim, which was filed and served in December 2002, Claimant seeks to
recover money damages for pain, suffering and physical limitation allegedly
caused by medical negligence and/or medical malpractice. Claimant alleges that
he dislocated and tore ligiments in his shoulder on May 5, 2000, which was
before he entered the State prison system. After the injury, he was informed by
a physician at Rikers Island (which is owned and operated by New York City, not
Defendant) that he would possibly need to have an operation, involving pins
placed in his shoulder, to properly repair it.
Claimant was subsequently transferred to Clinton Correctional Facility, still
suffering from the shoulder injury (Claim, ¶ 6). He states that he was
sent on “numerous” medical trips to other facilities and, at some
point, was told by a physician that surgery would be too risky (“surgery
would result in a ‘life or death’ situation”) (id).
Claimant received six weeks of physical therapy with, he states, “no
result.” At least as of the time the Claim was filed, Claimant asserted
that his injury continued to cause pain and had not been effectively treated
(id., ¶ 9).
In its Answer, Defendant State of New York, raised, among others, the
affirmative defense of untimeliness, and one prong of this motion seeks
dismissal of the Claim on that ground. The State’s argument regarding
timeliness rests on the conclusion, or assertion, that the claim accrued on May
5, 2000 (Acton affirmation, ¶ 1). This is incorrect. The Claim states,
quite clearly, that the State is being sued for alleged failure to properly
treat Claimant’s injury, not for having any role in causing the injury.
Defendant’s responsibility for treating the injury would have commenced
when Claimant entered the State prison system,
and its duty would be continuing if, as Claimant alleges, the condition remains
untreated. Unreasonable delay in properly diagnosing and treating a medical
condition may constitute medical malpractice when the omissions "amount to
something more than an honest error in professional judgment" (Stanback v
State of New York
, 163 AD2d 298 [2d Dept 1990]).
Defendant also argues that the Claim should be dismissed because “absent
expert opinion [Claimant] will not be able to establish a prima facie case of
medical malpractice” and “it appears [that] claimant will not be
able to overcome the reasonable medical judgment rule with respect to the
opinion offered by the surgeon” (Acton affirmation, ¶ 7).
Depending on the proof offered at trial and the witnesses called by Claimant,
these statements may turn out to be accurate. However, they do not provide a
legal basis for dismissal of the action at the present time. As defense counsel
notes, pro se litigants are exempt from the statutory requirement that
they submit a certificate of merit along with any Claim asserting medical,
dental or podiatric malpractice (CPLR 3012-a [f]). While it is true that
Claimant will have to supply expert medical testimony to prevail at trial in
this action (Duffen v State of New York, 245 AD2d 653 [3d Dept 1997],
lv denied 91 NY2d 810 ), the Claim is not frivolous or insufficient
on its face, and there is no ground for dismissing it at this juncture.
Defendant’s motion is DENIED.