New York State Court of Claims

New York State Court of Claims

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 dismissed.

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:
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 22, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

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, 2006.
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 department.
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 (Exh. 5).
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 Auburn.
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. 6).
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.
Mr. 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).
Eventually, 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 complaints.
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.
Medical Malpractice
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, 209-210).
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 dismissed.
Medical Negligence
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 circumstances.
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
Rochester, New York

Judge of the Court of Claims

[1].At the time the memorandum was written, food preparation for the whole system was done at Auburn.