LATINE v. THE STATE OF NEW YORK, #2006-031-512, Claim No. 103958
Claimant failed to prove either malpractice or negligence relating to
Defendant’s compliance with his special dietary needs. Claim
MALIKI SHAKUR LATINE
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
RENÉE FORGENSI MINARIK
MALIKI SHAKUR LATINE, PRO SE
HON. ELIOT SPITZER
New York State Attorney
BY: HEATHER R. RUBINSTEIN,
ESQ.Assistant Attorney General
May 22, 2006
See also (multicaptioned
Maliki Shakur Latine (“Claimant”) filed claim number 103958 on
March 12, 2001 alleging that he was denied a special medical diet (relating to
food allergies) during his incarceration at Auburn Correctional Facility
(“Auburn”). I held a video trial on this claim on January 30,
Claimant testified he arrived at Auburn on December 29, 2001 after
three weeks at Wende Correctional Facility (“Wende”). Prior to his
arrival at Wende, he bunked at Clinton Correctional Facility
(“Clinton”). He stated at trial that his personal property,
including all his paperwork, had not arrived from Wende when he was processed at
Auburn on December 29, 2000. Because his paperwork documenting his diet had not
arrived, he spoke with an area supervisor to advise Defendant orally about the
special medical diet he had previously been provided at Clinton. Claimant
testified that he believed the area supervisor was going to alert the medical
At Clinton, Claimant had been allowed to prepare his own food.
Moreover, the facility provided Claimant with food from a special list compiled
based on Claimant’s food allergies. I note that Claimant explained that
the staff at Clinton had, at first, attempted to prepare Claimant’s meals,
but later allowed him to do so himself because he kept getting ill. Claimant
explained that not only did certain foods cause allergic reactions but the
manner in which they are prepared could do so as well. Claimant prepared his
own food because the food had to be “denatured” which Claimant
understood to mean that the food had to be cooked slowly and thoroughly.
Claimant asserts that inmates working in the mess hall are not able to ensure
that his food is prepared the proper way.
As stated above, Claimant had a
list of the foods to which he was allergic. This is confirmed by a report of
allergy testing done at Albany Medical Center Hospital in 1998 (Exh. 5).
Exhibit 5 is a multi-page exhibit with pages bearing dates of September 23, 24
and 25, 1998 and October 2, 1998 titled “Rast Allergy Testing.” The
document is easily understood. Each allergen is listed and rated by class or
severity. At the time of the test, grass was the highest rated allergen. Some
of his food allergies included avocados, kiwis, cherries, navy beans, peanuts,
peas, lettuce, tomatoes, oranges, potatoes, pork, coconut, celery and peaches
Appended to Exhibit 1, the “Allowed Foods” list from
Clinton, is an August 26, 1986 memorandum from the Assistant Director for
Nutritional Services for the New York State Department of Correctional Services
(“DOCS”) to the Food Administrative II at
The memorandum states that “Mr. Latine has numerous food allergies and
must be very careful with his diet.” Other DOCS documents Claimant
provided at trial confirm a longstanding recognition by DOCS that Claimant
required a special medical diet, Exhibit 4 (1987); Exhibit 10 (1989); Exhibit 11
(1993), including a letter from a medical doctor to Clinton in 1983 (Exh.
Claimant called Mr. Eugene McPartland, Food Service Administrator at
Auburn. Mr. McPartland has been employed by DOCS at Auburn for 25 years. In
his current position he oversees the operation of the kitchen, the compilation
of food service schedules, the ordering of food and the implementation of
special diets. Claimant stated he first met Mr. McPartland in the mess hall
soon after he arrived at Auburn and spoke to him about the special diet.
McPartland testified that he cannot place an inmate on a special diet unless a
medical order is in place. Even if he has a medical order, if an inmate’s
needs cannot be met by one of the four basic diets that already have statewide
approval, the medical department needs to contact the Regional Dietician for
DOCS to get permission for a nonconforming diet. He also testified that this
process is required to be followed whenever an inmate enters a new facility, no
matter how long that inmate has been in the DOCS system. It was this
witness’s understanding that a diet order for Mr. Latine was obtained on
January 2, 2001 (Exh. D) and Claimant was directed to go to a special diet line
in the mess hall for his meals.
Mr. McPartland testified that, even after
the special diet was approved, Claimant still complained that he was being given
food to which he was allergic or that he was not receiving the proper food
dictated by his special dietary needs. Claimant himself stated at trial that he
did not want to eat three meals a day, as he considered this too much food.
Claimant maintains that he should have been allowed to receive and prepare his
food in his own cell like he did at Clinton. At Auburn, however, he was
directed to pick up his food at the diet line. Further, he stated that an
inmate’s failure to show up for each meal and take his tray of food
resulted in disciplinary action and, eventually, removal from the diet if the
inmate refused to cooperate.
A memorandum dated March 26, 2001, from the
Auburn Medical Department confirmed Defendant’s efforts to satisfy
Claimant’s dietary needs at Auburn. It appears that the Regional
Dietician had been timely consulted and she worked with Food Services to create
an appropriate diet for Claimant. Claimant shared his paperwork (old menus and
food lists) with all involved, including the Regional Dietician, maintaining
that what Auburn was providing through the diet line was inadequate. He also
objected to having inmates prepare his food (Exh. D).
Claimant filed a Grievance requesting that he receive a proper diet and receive
food appropriate for his religious beliefs. In the alternative, he requested
that he be allowed to prepare his own food or be transferred to a facility where
he could do so. The Inmate Grievance Review Council acknowledged the medical
staff’s efforts to create an appropriate diet, but recommended that
Claimant be moved to an honor company so he could prepare his own food based on
his allergies and need for a special diet. Claimant’s additional request
for a special Muslim diet was deemed a nonmedical issue. The
Superintendent’s response to the grievance indicated that Claimant’s
dietary issues had been addressed, therefore his grievance was denied on June 4,
2001 (Exh. 2). This sequence of events was also noted in Claimant’s
Medical Records (Exh. A). Claimant testified that as a consequence of
Defendant’s actions, he lost weight and suffered from hives, diarrhea and
eczema. Claimant was transferred from Auburn to Comstock Correctional Facility
on August 21, 2001 where, apparently, he had no further dietary
It is not clear to me exactly what cause of action Claimant
intended to pursue. However, given the fact that he is pro se, I have concluded
that his claim alleges three possible causes of action: medical malpractice,
medical negligence and negligence.
It is well settled that the State has a duty to provide reasonable and
adequate medical care to the inmates of its correctional facilities (Rivers v
State of New York, 159 AD2d 788, lv denied 76 NY2d 701). The State
may be cast in liability for injuries that result because its physicians fail to
use ordinary and reasonable care or to exercise their best judgment in applying
the knowledge and skill ordinarily possessed by practitioners in the field
(Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804).
Only expert medical proof can establish the necessary legal causation required
to impose liability and demonstrate that there was a deviation from good and
accepted standards of medical care (see Rossi v Arnot Ogden Med. Ctr.,
268 AD2d 916).
To establish a prima facie case of liability in a medical
malpractice action, a claimant must prove: (1) the standard of care in the
locality where the treatment occurred, (2) that the defendant breached that
standard of care, and (3) that the breach of the standard was the proximate
cause of injury (Berger v Becker, 272 AD2d 565). When the medical
malpractice involves patient treatment, three component duties are owed by the
physician to the patient: (1) the duty to possess the requisite knowledge
and skill such as is possessed by the average member of the medical profession;
(2) a duty to exercise ordinary and reasonable care in the application of such
professional knowledge and skill; and (3) the duty to use his best judgment in
the application of this knowledge and skill (Littlejohn v State of New
York, 87 AD2d 951, 952, citing Pike v Honsinger, 155 NY 201,
To sustain this burden, a claimant must present expert testimony
that the defendant’s conduct constituted a deviation from the requisite
standard of care (Berger v Becker, supra; Koehler v Schwartz, 48
NY2d 807). Neither the Court nor the Claimant possesses the requisite knowledge
necessary to pass judgment on the connection between Claimant’s diet as
provided by Auburn and his physical condition. Thus, to the extent that
Claimant’s case sounded in medical malpractice, that claim is
Similarly, a cause of action sounding in medical negligence, in essence,
alleges negligent omissions or commissions by State caregivers which can be
readily determined without the necessity of expert testimony. However, this
theory is limited to “those cases where the alleged negligent act may be
readily determined by the trier of the facts based on common knowledge”
(Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256).
Such cases have involved scalding patient with a hot water bottle (Phillips v
Buffalo General Hospital, 239 NY 188), leaving an electric light bulb under
the sheets (Dillon v Rockaway Beach Hospital, 284 NY 176), leaving a
postoperative patient unattended in a bathroom (Coursen v New York
Hospital-Cornell Med. Center, supra), and other similar
At least initially, this claim appeared to be an instance
where the trier of fact could readily determine whether defendant’s
omissions or commissions constituted medical negligence. Claimant’s food
allergies are well documented (Exhs. A and D). However, the proof at trial
established that a medical diet order was put in place within days of
Claimant’s arrival at Auburn. Defendant made the food available to
Claimant through a diet line in the mess hall. Mr. McPartland testified the
food provided was in accordance with the Regional Dietician’s directions.
Claimant testified the food provided was inappropriate. Claimant’s
position was that certain different foods should have been provided and that he
should have been permitted to prepare this food himself. For whatever reason,
Defendant did not allow Claimant to do that.
Had this simply been a matter
of Defendant feeding Claimant food he was allergic to, then medical negligence
would be indicated. The connection I cannot make is whether or not the
preparation of the food caused Claimant’s medical problems. I would need
expert testimony. Thus, to the extent the Claimant alleges a cause of action
sounding in medical negligence, that cause of action is dismissed.
Nor can I find Defendant’s actions in this matter to be negligent.
Mr. McPartland testified regarding the procedure to be followed when a medical
diet is indicated. That procedure was followed in Mr. Latine’s case. A
medical diet was ordered and compiled in consultation with the Regional
Dietician. Auburn’s procedure was to make the food available through the
diet line; however that required an inmate to pick up the food in the mess hall.
Claimant missed more than the maximum three meals per week (Exh. A). Even if I
had found Defendant’s conduct actionable, Claimant would be partly to
blame for failing to follow the outlined procedure.
Claimant has failed to
sustain his burden of proof. He has offered nothing of probative value to prove
that Defendant acted negligently.
The claim is dismissed. Any and all other
motions on which I may have previously reserved or which were not previously
determined, are denied.
Let judgment be entered accordingly.
May 22, 2006
HON. RENÉE FORGENSI MINARIK
Judge of the Court of
.At the time the memorandum was written, food
preparation for the whole system was done at Auburn.