New York State Court of Claims

New York State Court of Claims

FRAGOSO v. THE STATE OF NEW YORK, #2006-030-004, Claim No. 109735


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:
Third-party defendant's attorney:

Signature date:
April 6, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 claim.

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. [
ibid. 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.].
Although 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. Exhibit I, ¶(3)(ix)]. 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. [
See 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, ¶ (3)(xi)].
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. [
ibid. 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 mastoiditis. [id.].
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. [
ibid. ¶¶ 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 pain." [ibid. ¶33].
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 New York, 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, supra, at 928-929; see also O'Connor v State of New York, 15 AD3d 827 (3d Dept 2005), lv denied 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 working diagnosis.
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, 56 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, supra; Kelly v State of New York, 110 AD2d 1062 (4th Dept 1985); Howard v State of New York, 96 AD2d 656 (3d Dept 1983); Davis v State of New York, supra; 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
prima facie case.
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 drops."[1]
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 another consultation.
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 [
See 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 TMJ."
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. [
See 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 Neurontin.

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 and treatment.
Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied 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 York, 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 (1999).
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 expert testimony.
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 York, 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, supra; Kagan v State of New York, supra. 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
prima facie case, upon which decision was reserved at the time of trial, is hereby granted, and Claim Number 109735 is dismissed in its entirety.
Let judgment be entered accordingly.

April 6, 2006
White Plains, New York

Judge of the Court of Claims

[1] Quotations are to trial notes or audio recordings unless otherwise indicated.