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.
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.
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.
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.
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
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 ; Sciarabba v
State of New York
, 182 AD2d 892, 893-894 [3d Dept 1992]).
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
“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 ; see Tatta v
State of New York
, 19 AD3d 817 [3d Dept 2005], lv denied
5 NY3d 712
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
, lv denied
91 NY2d 810 ).
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