Claimant alleges an action for medical malpractice and medical negligence for
the failure by prison medical employees to timely diagnose a stomach ailment
that required surgery. The only proof claimant produced at trial was his own
testimony and his medical records. No expert testified in support of claimant's
case. His testimony reiterated his medical records. His medical records (Exhibit
1) provide that on August 17, 2000, he complained of stomach pains at
It was noted that if the pain continued, claimant would be referred to Dr.
Evelyn Weisman, the prison physician. Claimant was seen again on August 22, 2000
for complaints of gas, bloating and constipation for which he received Maalox
and a blood test for h-pylori was ordered. There is nothing in the medical
records that explains h-pylori or why such a test was needed. On September 19,
2000 claimant was given biaxin and prilosec because the h-pylori test was
positive. It was written that a follow-up appointment would occur in 3 weeks. On
October 13, 2000, the prilosec was changed to prevacid. On November 16, 2000,
claimant was seen for athlete's foot and no stomach complaints were noted. On
December 5, 2000, he was transferred to Upstate Correctional Facility. On
December 26, 2000, claimant stopped a health care professional dispensing
medications in the gallery and complained of blood in his stool. He was advised
to sign up for sick call the next morning which he did not do. The next medical
record, dated December 30, 2000, indicated that claimant gave a nurse a feces
sample in an open milk carton which was red in color and tested positive for
blood. He was admitted to the infirmary, and sent to Alice Hyde Hospital, where
he underwent surgery early in 2001.
A recent decision by the Third Department is directly on
"Whether the claim is grounded in negligence or medical malpractice,
‘[w]here medical issues are not within the ordinary experience and
knowledge of lay persons, expert medical opinion is a required element of a
prima facie case."' (Tatta v State of New York
, 19 AD3d 817 [3d Dept.
2005]; Wells v State of New York
, 228 AD2d 581 , lv
88 NY2d 814 ; see Duffen v State of New York
245 AD2d 653 , lv denied
91 NY2d 810 ). In the instant
case, the failure to present any testimony on the effects that any alleged delay
or the prescribed treatment had on claimant's ultimate surgery is fatal. Such
facts are outside the ordinary experience and knowledge of a layperson (Tatta
v State of New York
; Henry v Cobleskill-Richmondville Cent.
, 13 AD3d 968 [3d Dept 2004]; Martin v Wilson Mem. Hosp.
2 AD3d 938 [3d Dept 2003]).
The case is dismissed. All motions not heretofore ruled upon are denied.
Let judgment be entered accordingly.