Claimant, an inmate appearing pro se
, alleges that defendant State
of New York (“defendant”) negligently failed to provide him with
appropriate medical care while he was incarcerated at Elmira Correctional
Facility (“Elmira”). A trial of this claim was held at Elmira on
October 25, 2006.
Claimant testified that he was being held in the Special
Housing Unit on E-Block at Elmira on October 14, 2003 due to a rules infraction.
On that day, E-Block was evacuated because a search of the facility was being
performed by drug-sniffing dogs. During the evacuation, claimant was sent into
the yard with the general population. While standing in the yard, claimant was
assaulted by an unknown inmate, who hit him in the face, causing a bloody
Claimant testified, with little credibility, that he advised Sergeant
Keough, an Elmira correction officer, that he believed he had fractured his nose
and needed medical treatment. He stated that Keough threatened him and told him
to go back to his cell. The next day, while having his blood pressure checked,
claimant advised a facility doctor of the incident. X-rays revealed that
claimant's nose was fractured, and his medical records indicate that he has a
deviated septum. Claimant further testified that the doctor told him that the
septum could be straightened by putting clamps in his nose. Claimant declined
Claimant filed a grievance regarding the delay in treatment.
Keough was sent to claimant to investigate the grievance, but claimant refused
to speak to him because Keough was involved in the incident which led to the
grievance. Claimant then filed another grievance claiming that the correction
official involved in the original incident should not investigate that incident.
The record contains no indication of how the original grievance was
On cross-examination, claimant stated that he was not
harmed by the delay in treatment, but that he was upset because the prison
officials did not provide immediate medical treatment. Claimant further stated
that his claim was for medical negligence only, and that he was not stating a
claim for negligence with regard to the assault itself.
Keough testified for
defendant. He stated that he did recall E-block being evacuated on the date of
the incident in question, but that he did not remember an assault. He further
testified that he did not recall claimant advising him of an injury, and also
did not remember sending claimant back to his cell with a bloody nose.
the close of claimant's case, counsel for defendant moved to dismiss the case
for a number of reasons, including:
- claimant’s failure to make a
prima facie case;
- claimant’s failure to establish medical
malpractice insofar as no qualified medical expert testified regarding
- claimant’s failure to establish a claim for medical
negligence, as it would not be within the expertise of a layperson to determine
whether claimant needed medical treatment. Defendant also moved to dismiss on
the grounds that no damages were shown to have resulted from the delay, and for
improper service of the claim on the Attorney General's office under Court of
Claims Act §11. The Court reserved decision on the motions, and further
reserved decision at the close of the trial.
Court of Claims Act §11
(a) requires that a claim be served upon the Attorney General either by personal
service or by certified mail, return receipt requested. In support of the
motion to dismiss for improper service, defendant submitted into evidence the
original envelope in which the claim was received by the Attorney General's
office, together with claimant's affidavit of service.
That envelope contains a certified mail sticker, and the handwritten notation
“Certified Mail Return Receipt Requested”. However, the envelope
does not have the stickers which would be left on the envelope if a return
receipt had been requested. Notably, claimant's affidavit of service indicates
that the claim was sent certified mail, but makes no mention of sending it
“return receipt requested.”
In response to defendant's motion,
claimant produced a photocopy of a return receipt. However, the photocopy shows
only the side of the receipt addressed to claimant, and shows a stamp stating
“Received Apr 08 2004". There is no indication that this is a return
receipt from a document received by the Attorney General's office. Claimant is
required to use the precise method of service set forth in the statute (Hodge
v State of New York
, 213 AD2d 766 ). When claimant's method of
service is challenged, he must be able to produce a return receipt (Govan v
State of New York
, 301 AD2d 757, 758 , lv denied,
99 NY2d 510;
Pratt v State of New York
, Ct Cl, June 20, 2003, Hard, J., Claim No.
107420, Motion Nos. M-66764, M-66765, Cross-Motion No. CM-66824 [UID #
2003-032-057]). Claimant's failure to produce adequate documentation that the
claim was sent return receipt requested requires dismissal of the claim on
jurisdictional grounds, and defendant's motion to dismiss could be granted
solely on this basis.
However, defendant also moves to dismiss the claim
based upon claimant’s failure to set forth a prima facie case of medical
negligence. The State may be found liable for medical negligence where the
negligence of the alleged omissions or acts complained of can be readily
determined by the finder of fact, using common knowledge without the necessity
for medical testimony (Coursen v New York Hosp.-Cornell Med. Ctr.
AD2d 254, 256 ). Likewise, the State may also be found liable for medical
negligence if its employees fail to comply with an institution's rules and
regulations for dispensing medical care to inmates (Kagan v State of New
, 221 AD2d 7, 10 ). In this case, whether or not defendant made a
timely diagnosis of claimant's condition, and moreover whether claimant was
damaged by the alleged delay, is not a matter which lies within the common
knowledge of the trier of fact. For the Court to conclude that defendant was
negligent in waiting to take x-rays of claimant's bloody nose until the day
after the incident, and to determine whether claimant incurred any damages as
the result of that delay, would require expert medical testimony (see Duffen
v State of New York
, 245 AD2d 653 , lv denied
91 NY2d 810).
Further, claimant has not alleged the breach of any administrative rules or
regulations pertaining to his treatment, or which indicate that defendant
deviated from such procedures to claimant's detriment.
Claimant's failure to provide either any expert medical testimony, or any proof
of deviation from institutional procedure in his treatment, is fatal to his
claim for medical negligence, and requires dismissal of that
Similarly, to the extent that claimant may allege that defendant
committed medical malpractice, his claim must be dismissed due to his failure to
present expert medical testimony that the care he received deviated from good
and accepted standards of medical care (Rossi v Arnot Ogden Med. Ctr.
268 AD2d 916, 918 , lv denied
95 NY2d 751).
The claim is
therefore dismissed, and any motions not heretofore determined or upon which
reservation was made are hereby denied.
Let judgment be entered