James Fragoso, the Claimant herein, alleges in Claim Number 109735 that
Defendant's agents failed to provide him with adequate and timely medical care
while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing
Sing). Trial of the matter was held on January 13, 2006.
As an initial matter, the Defendant made a motion to dismiss based upon its
Fifth Affirmative Defense, asserting a lack of jurisdiction premised upon the
Claimant's alleged failure to timely serve and file a notice of intention or a
The Notice of Intention to file a claim was received by the Attorney General's
Office on January 2, 2004. A copy of it is appended to the Claim and is
confusing in terms of a date of accrual. [Claim No. 109735, Exhibit I]. It
provides that Mr. Fragoso's complaints of pain in his right ear began in
February 1997 while at Sing Sing. [
. Exhibit I, ¶(3)(ii)]. He asserts that he did not receive
medical treatment for such complaints until February 17, 1998 at Great Meadow
Correctional Facility, and then continued to complain of pain in his right ear
throughout 1998, 1999 and 2000, at the several correctional facilities to which
he was transferred during those years. [id.
he was tested by various means, and different working diagnoses were ruled out
- including TMJ [temporomandibular joint disorder], infection, "mastoiditis" -
the last date of medical treatment alleged in the Notice of Intention is in or
about December 2000, when an MRI was interpreted by a neurologist as revealing
that Claimant suffered from "mastoiditis". [ibid.
In the paragraph following his reference to that
"diagnosis" in the Notice of Intention Mr. Fragoso writes: "Claimant, after more
than two years of suffering and being misdiagnosed, is currently being
prescribed Tegretol and Neurontin to relieve his chronic pain;" [ibid
Exhibit I, ¶(3)(x)]. Read in context, this statement refers to the years
preceding December 2000.
Additionally, from a review of the voluminous medical records submitted in
evidence - records containing many handwritten notations that are therefore
subject to uncertain interpretation - there is a reference to Claimant's ear
pain being treated with Neurontin in December 2000. [
Defendant's Exhibit A].
The Notice of Intention indicates that in June 2001 Claimant commenced a civil
rights action in the United States District Court for the Northern District of
New York. [Claim No. 109735,
Exhibit I, ¶ (
A copy of the Memorandum and Order dated November 3, 2003 from the United
States District Court for the Northern District of New York dismissing
Claimant's action brought pursuant to 42 USC §1983 is appended to the claim
served and filed herein. [
. Exhibit G]. The Order reflects that the same underlying facts
asserted here were asserted in that forum, at least up to the point that the
working diagnosis in Claimant's medical treatment was that he suffered from
The Claim served and filed in this Court alleges deficiencies in medical
treatment commencing in 1998. He again alleges that in December 2000 his ear
pain was diagnosed as mastoiditis, and that he was transferred from Southport
Correctional Facility to Upstate Correctional Facility in December 2000. [
¶¶ 30-32]. Mr. Fragoso indicates that "after more than
two years of suffering and being misdiagnosed, [Claimant] was examined by Dr.
Aziz (a neurologist) at Clinton Correctional Facility, who finally and correctly
diagnosed claimant's condition as ‘glassopharyngeal neuralgia.' Claimant
is currently being prescribed Tegretol and Neurontin to relieve his chronic
Claimant does not indicate when this "correct diagnosis" was made, and the
Court's review of the medical record revealed that the earliest - and again
handwritten - reference to claimant's right ear pain as "glassopharyngeal
neuralgia" was in March 2003. [Defendant's Exhibit A]. This reference in the
medical record also makes it clear that as a description of the etiology of
Claimant's ear pain, "glassopharyngeal neuralgia" had been in use for some time
prior to March 2003.
An affidavit of service appended to the Claim indicates that this claim was
served upon the Attorney General's Office in or about July 2004.
Defendant argued that the last date connected to medical treatment for
Claimant's complaints of pain in his ear alleged in the claim itself is unclear
or, at the latest, would be in June 2001 when the federal lawsuit was commenced.
Based upon such a date of accrual, or even a date of accrual of March 2003 when
the diagnosis Claimant himself indicates was the "correct" one was decided, the
service of the Notice of Intention and of the Claim was untimely.
Under the continuous treatment doctrine, the time in which to bring a
malpractice action is stayed "when the course of treatment which includes the
wrongful acts or omissions has run continuously and is related to the same
original condition or complaint."
Borgia v City of New York
, 12 NY2d 151,155 (1962); Civil Practice Law and
Rules §214-a. The underlying principles behind the application of the
doctrine are two-fold: first, it is in the patient's best interest to continue
ongoing medical treatment and second, the initial medical practitioner is in the
best position to identify and correct his own malpractice. See
Nykorchuck v Henriques
, 78 NY2d 255, 258-259 (1991); Toxey v State of
, 279 AD2d 927, 928 (3d Dept 2001), lv denied
96 NY2d 711
(2001). Indeed, when a notice of intention is served - the "initiation of legal
process" - any continued relationship of trust between doctor and patient is
severed. Toxey v State of New York
, at 928-929; see also
O'Connor v State of New York
, 15 AD3d 827 (3d Dept 2005), lv
5 NY3d 702 (2005).
It would seem that the initiation of a lawsuit in federal court demonstrating
the same loss of trust would also sever the doctor and patient relationship.
Indeed, the only relationship to the timing of the service of the Notice of
Intention in January 2004 appears to be the dismissal of the federal court
action in November 2003, not any continued medical treatment or change in
Cf. Davis v State of New York
, 2004 WL 2532295 (Ct Cl 2004).
Moreover, when the continuing treatment is provided by someone other than the
allegedly negligent practitioner there must be an agency or other relevant
relationship between the health care providers.
Meath v Mishrick
, 68 NY2d 992, 994 (1986); McDermott v Torre
NY2d 399, 403 (1982); Ogle v State of New York
, 142 AD2d 37, 39-40 (3d
Dept 1988). Common ownership of correctional facilities alone by the Defendant
may be insufficient to trigger the continuous treatment doctrine [Allende et
al v New York City Health and Hosps Corp.
, 90 NY2d 333, 340 (1997)] although
relevant relationships can be more readily found in the prison setting where a
claimant has little to no control over which medical practitioners he sees.
See generally Ogle v State of New York
; Kelly v
State of New York
, 110 AD2d 1062 (4th Dept 1985); Howard v State of New
, 96 AD2d 656 (3d Dept 1983); Davis v State of New York
; Cipollone v State of New York
, NYLJ, September 27,
1990, at 25, col. 6 (Ct Cl).
Determinations on whether the continuous treatment doctrine will apply to toll
the time within which an action may be brought are driven by the facts of the
case and the nature of the malpractice claimed. As noted above, even assuming
the most generous dates of termination of treatment, i.e., the June 2001
commencement of the federal action as foreclosing application of the continuous
treatment doctrine, or the March 2003 reference to the "correct" diagnosis; the
service of a Notice of Intention on January 2, 2004 was untimely except as to
any alleged misfeasance occurring ninety (90) days prior to that date. Notably,
none is alleged in the Notice within that time frame. Since it was not timely
served, the Notice of Intention did not operate to extend the time period within
which a claim could be served and filed. Accordingly, the Claim is dismissed
based upon the Defendant's Fifth Affirmative Defense.
More substantively, even if the Court were to assume that the Claim is timely,
Claimant has not established a
At trial, Claimant testified that he began experiencing pain in his right ear
in February 1998 when he was an inmate at Sing Sing and complained to medical
personnel who "only prescribed ear
He indicated that his placement at Sing Sing was from January 1997 to June 1998.
Thereafter, he was "transferred to Cayuga", and resided there from June 1998
through November 1998. During that time he was seen by an ENT specialist, but
"nothing further happened", although he had been advised that he would have
Claimant described transfers throughout the correctional system, and at each
facility - among other ailments shown in the medical record such as back pain,
asthma, skin conditions, bunions, allergies [Defendant's Exhibit A] - he
complained of ear pain [
Exhibit 1], saw medical personnel, and was referred for consultations
with specialists and prescribed pain relief medication. While in Great Meadow
Correctional Facility, for example, he was sent to have his tooth extracted,
based upon the possibility that the ear pain had a dental origin. He still
experienced pain after the extraction. Another theory for the ear pain was that
Claimant was suffering from TMJ. After an x-ray "was done, proving . . .[he]
didn't have it, they still insisted
. . . [he] had
On December 19, 1999 Claimant was in the Southport Correctional Facility SHU
in the care of Dr. Alvez, who sent Claimant for a hearing test rather than the
MRI that had been "promised". Claimant told the doctor that as far as he knew
there was nothing wrong with his hearing but rather he continued to experience
extreme pain in his right ear. "Three or four months went by" waiting for
results of the hearing test as Claimant continued to complain of pain.
Thereafter, he saw a neurologist "called Jallipoli" upon referral by Dr. Alvez,
who ordered him the MRI. Dr. Jallipoli said he "had mastoiditis - a buildup of
the mastoid air cells behind . . . [his] ear - and that that was the cause of
the ear pain." Claimant was prescribed Vioxx and Celebrex.
In December 2000 he "went to Auburn and then 2 weeks later he was sent back to
SHU in Upstate". About one (1) year later he was "sent up to Clinton - where I
am now - where I saw a neurologist named Dr. Aziz". He took Tegretol but
suffered "bad effects because it lowered [his] white blood cells." Claimant
testified - as he had averred in his claim - that his painful ear condition was
"correctly diagnosed" by Dr. Aziz at Clinton Correctional Facility as
glassopharyngeal neuralgia. He did not say when this diagnosis was made.
Claimant testified that he commenced his action in 2001 in federal court in an
attempt to get "some injunctive relief (i.e. medical care directed) and for
compensatory damages", and that he "fought that case for 2 years." He indicated
that "all he could prove was negligence not the deliberately indifferent
standard required for constitutional violations".
Claimant submitted various documents of limited utility in evidence, that have
been reviewed by the Court. [
Exhibits 1, 2, 3, 4, 5].
On cross-examination Claimant confirmed again that he was diagnosed with
glassopharyngeal neuralgia. Claimant explained the term as meaning that a
bubble had burst in his ear, and the liquid coming down and burning a nerve
caused pain. He also confirmed that he had been prescribed Tegretol and
No other evidence was submitted and no other testimony was elicited on
Claimant's direct case.
The Defendant called Dr. John Perilli, the medical director at Sing Sing since
December 2, 1999. Reviewing the Claimant's medical record from 1997 through
December 27, 2005 [Defendant's Exhibit A], Dr. Perilli noted that on November
10, 1997 the Claimant's first complaints of pain in his right ear are noted.
Dr. Perilli reviewed the various diagnostic tools used to try to establish the
etiology of Claimant's complaints of pain in his right ear, saying that the
"glassopharyngeal neuralgia" signifies only that there was no disruptive lesion
impinging on a nerve root. After completely reviewing the medical records, Dr.
Perilli said that it appeared that there was no organic basis for the symptoms
complained of. Medical personnel "did not come up with a finding essentially".
Dr. Perilli said that "when complaints persist over the course of time with no
organic basis or clinical foundation then there are two possibilities: A
psychiatric disorder or a malingering disorder because people just exaggerate
their symptoms." Dr. Perilli opined that Claimant had received adequate medical
care without undue delay according to the records he reviewed.
It is "fundamental law that the State has a duty to provide reasonable and
adequate medical care to the inmates of its prisons," including proper diagnosis
Rivers v State of New York
, 159 AD2d 788, 789 (3d Dept 1990), lv
76 NY2d 701 (1990).
In a medical malpractice claim, the Claimant has the burden of proof and must
prove (1) a deviation or departure from accepted practice and (2) evidence that
such deviation was the proximate cause of the injury or other damage. A cause
of action is premised in medical malpractice when it is the medical treatment,
or the lack of it, that is in issue. A Claimant must establish that the medical
caregiver either did not possess or did not use reasonable care or best judgment
in applying the knowledge and skill ordinarily possessed by practitioners in the
field. The " ‘claimant must [demonstrate] * * * that the physician
deviated from accepted medical practice and that the alleged deviation
proximately caused his . . . injuries' (
Parker v State of New York
, 242 AD2d 785, 786)." Auger v State of New
, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof, no
viable claim giving rise to liability on the part of the State can be sustained.
Hale v State of New York
, 53 AD2d 1025 (4th Dept 1976), lv denied
40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a
minimum, the standard of care. Spensieri v Lasky
, 94 NY2d 231
If a claim can be read to allege simple negligence, or medical negligence, then
the alleged negligent omissions or acts by the State's employees can be readily
determined by a fact finder using common knowledge without the necessity of
Coursen v New York Hospital-Cornell Med. Center
, 114 AD2d 254, 256 (1st
Dept 1986). Similarly, the State may be found liable for ministerial neglect if
its employees fail to comply with an institution's own administrative procedures
and protocols for dispensing medical care to inmates. Kagan v State of New
, 221 AD2d 7, 10 (2d Dept 1996).
In this case, only the testimony of the Claimant has been presented on his
direct case in support of any claim of malpractice. No competent medical
evidence was presented, through a treating physician or an expert witness whose
opinion was based upon the available medical records, to support the allegation
of medical malpractice. Other than the testimony of Dr. Perilli, who indicated
after his review of Claimant's records that Mr. Fragoso was given medical care
within accepted standards, there is no medical evidence proving that accepted
standards of care were not met. Accordingly, the claim of medical malpractice
must be dismissed.
Additionally, from this record there is no indication that the actions of
medical caregivers amounted to simple negligence or ministerial neglect.
Coursen v New York Hospital-Cornell Med. Center
Kagan v State of New York
To the extent the claim can be
read to assert such theories, any cause of action for negligence or ministerial
neglect is also dismissed.
The Defendant's motion to dismiss for failure to establish a
case, upon which decision was reserved at the time of trial,
is hereby granted, and Claim Number 109735 is dismissed in its
Let judgment be entered accordingly.