New York State Court of Claims

New York State Court of Claims

SILVA v. THE STATE OF NEW YORK, #2006-041-506, Claim No. 108548


Claimant‛s medical malpractice claim is dismissed after trial for failure to present expert medical testimony showing a deviation from accepted medical standards of care.

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):

Frank P. Milano
Claimant’s attorney:
Angel SilvaPro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Michael Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 9, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This claim was tried at the Clinton Correctional Facility on November 2, 2006.
The Court will first address a procedural matter. In its answer, the defendant asserted as an affirmative defense that the Court lacked both subject matter jurisdiction over the claim and personal jurisdiction over the defendant because of the claimant’s “failure to timely and properly serve a Claim upon the Attorney General, pursuant to Sections 9, 10 and 11 of the Court of Claims Act.” The Court’s file contains no affidavit of service of the claim upon the Attorney General or any other proof of proper service of the claim.
Court of Claims Act § 11(c) provides as follows:
“Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in subdivision a of this section, . . . is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”

In Knight v State of New York (177 Misc 2d 181, 183 [Ct Cl 1998]), the court explained that:
“Prior to the enactment of subdivision (c) of section 11 (L 1990, ch 625), the service and filing requirements of Court of Claims Act § 11 were treated as issues of subject matter jurisdiction which could be raised at any time, even if not pleaded in the answer or raised in a preanswer motion . . . The time limitations set forth in Court of Claims Act § 10 were accorded the same status . . . .
The memoranda contained in the Bill Jacket of chapter 625 of the Laws of 1990 which enacted section 11 (c) clearly disclose that the primary purpose of the Legislature in enacting the subdivision was to remove the time limitations of section 10 and the service and filing requirements of section 11 from the realm of subject matter jurisdiction by making departures from the statutory requirements waivable.”

Although the defendant preserved its jurisdictional objection as an affirmative defense in its answer, it failed to mention, and therefore failed to prove, the affirmative defense of improper service at trial. The defense was waived (see Williams v State of New York, 2005 NY Slip Op 52281[u]; UID #2005-030-950
[Ct Cl 2005]).
In considering the claim on its merits, the Court finds that claimant failed to prove negligence on the part of defendant.
Claimant Angel Silva, while an inmate at Clinton Correctional Facility during 2002, became concerned with medical issues affecting his eyes. Experiencing pain in his right eye, claimant expressed his concerns to a facility nurse.
In March, 2002, he was taken to the Champlain Valley Physicians Hospital for treatment. Thereafter, he was taken to Coxsackie Correctional Facility on a number of occasions to consult with an ophthalmologist. These visits were in March, August, October and November of 2002. Eventually, toward the end of 2002, claimant had surgery to remove his right eye.
Beyond complaining about the inadequacy of the medical treatment he received, leading to the loss of his right eye, claimant complains of belated treatment, incorrectly prescribed eye medication, that the failure to properly treat the right eye negatively affected his left eye, special eyeglasses prescribed by the ophthalmologist to protect his left eye were never provided and that he suffered inflamation of his left eye.
As a result of defendant’s claimed negligence, claimant seeks damages for past and future pain and suffering, loss of his right eye, deteriorated vision in his left eye and loss of enjoyment of life and employment opportunity.
Claimant, appearing pro se, was the only witness at trial. No expert medical opinion or testimony was given. No exhibits were offered into evidence. Defendant called no witnesses. At the close of claimant’s case, defendant moved to dismiss the claim, upon which the Court reserved decision.
Upon cross-examination claimant acknowledged that he had endured trouble with his right eye prior to his incarceration, but he did state that he had vision in the eye. While acknowledging that he had been provided with eye drops to treat his eyes, he stated it was the incorrect medication. Under cross-examination, he also conceded that he was not claiming an absence of any sort of medical treatment, but that the treatment provided was insufficient, incorrect and belated.
It “is well settled that where the State engages in a proprietary function such as providing medical and psychiatric care, it is held to the same duty of care as private individuals and institutions engaged in the same activity” (Rattray v State of New York, 223 AD2d 356, 357 [1st Dept 1996]).
Defendant was required to exercise professional medical judgment within the range of accepted medical standards in its treatment of claimant. The law is clear that “neither a medical provider ... nor the State or governmental subdivisions employing the medical provider, may be held liable for a mere error in professional judgment” (Ibguy v State of New York, 261 AD2d 510 [2d Dept 1999], lv denied 93 NY2d 816 [1999]; Sciarabba v State of New York, 182 AD2d 892, 893-894 [3d Dept 1992]).
Conclusory allegations of medical malpractice, unsupported by competent evidence establishing its essential elements, are insufficient to state a prima facie case. Through a medical expert, it must be shown that defendant deviated from the standard for good and acceptable care in the locality where the treatment occurred and that the deviation was the proximate cause of the injury (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]; Yamin v Baghel, 284 AD2d 778, 779 [3d Dept 2001]; Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]).
“Where 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” (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]).
The fact that claimant proceeded pro se does not excuse the need for expert medical opinion to demonstrate a deviation from the applicable standard of care (Duffen v State of New York, 245 AD2d 653, 653-654 [1997], lv denied 91 NY2d 810 [1998]).
Reviewing the evidence received at trial, the record is barren of expert medical proof to demonstrate medical malpractice on the part of the defendant. Accordingly, the claim must therefore be, and hereby is, dismissed.
All motions not previously decided are hereby denied. The claim is dismissed. Let judgment be entered accordingly.

November 9, 2006
Albany, New York

Judge of the Court of Claims

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