New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2007-010-003, Claim No. 105169


Synopsis


Claimant’s claim alleging medical malpractice dismissed. No evidence presented to support allegations.

Case Information

UID:
2007-010-003
Claimant(s):
CARLOS RODRIGUEZ
Claimant short name:
RODRIGUEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105169
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
CARLOS RODRIGUEZPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 19, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claim No. 105169 alleges that during claimant’s incarceration in the New York State Correctional System he received negligent medical care from August 13, 1993 through October 23, 2001.
The claim was served and filed on November 5, 2001. Defendant raised in its answer the affirmative defense of lack of jurisdiction based upon untimely service (Answer, ¶ 3). At trial, defendant argued that the claim was untimely as to any acts which occurred more than 90 days prior to commencement of the action. Claimant argued that he first learned that he had tested positive for H. Pylori at the end of March 2001, when he received a laboratory report from Medilabs (Ex. 1); therefore he maintained that his claim was timely.
Even accepting claimant’s date of accrual, the claim was untimely (see Court of Claims Act §§10, 11). The provisions of Court of Claims Act § 10 and § 11 are to be strictly construed and failure to comply with the service provisions “is a jurisdictional defect compelling the dismissal of the claim” (Welch v State of New York, 286 AD2d 496, 497-98). Accordingly, the claim warrants dismissal (see Flynn v City Univ. of N.Y. at Brooklyn Coll., 6 AD3d 656 [failure to comply with time limitations set forth in the Court of Claims Act results in a lack of jurisdiction]). Nonetheless, the Court permitted claimant to testify and present his proof at trial.
Claimant testified that in 1993, while he was incarcerated at Downstate Correctional Facility, he complained of abdominal cramps, diarrhea, vomiting, and sweating. He was initially hospitalized for 30 days and then in and out of the hospital once or twice a year for an undisclosed number of years. Claimant maintains that he failed to receive adequate medical treatment. He testified that he filed grievances and wrote to the Office of the Attorney General and the superintendent of the facility. Throughout his incarceration at various facilities, claimant only received over-the-counter medication that provided temporary relief from his symptoms. When he was released from custody in 2005, claimant received medical treatment which has cured his condition.
“[A] duty of ordinary care is owed by prison authorities to provide for the health and care of their charges” (Gordon v City of New York, 120 AD2d 562, 563, affd 70 NY2d 839; Cauley v State of New York, 224 AD2d 381). The theory of simple negligence is restricted to those cases where the alleged negligent acts are readily determinable by the trier of the facts on common knowledge (see Weiner v Lenox Hill Hosp., 88 NY2d 784; Rey v Park View Nursing Home, 262 AD2d 624; Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256). However, where the treatment received by the patient is an issue, the more specialized theory of medical malpractice must be followed (see Twitchell v MacKay, 78 AD2d 125; Hale v State of New York, 53 AD2d 1025). To establish a prima facie case of medical malpractice, a claimant must prove, inter alia, that defendant departed from good and accepted medical practice and that such departure was a substantial factor in producing the alleged injury (see Cavlin v New York Med. Group, 286 AD2d 469; Tonetti v Peekskill Community Hosp., 148 AD2d 525).
In the instant case, claimant failed to present any competent medical evidence, either from a treating physician or from an expert whose opinion was based upon the available medical records, to support his allegations of medical malpractice. Claimant’s own unsubstantiated assertions and speculations are insufficient to establish merit and a prima facie case (see Wells v State of New York, 228 AD2d 581; Mosberg v Elahi, 176 AD2d 710, affd 80 NY2d 941). Accordingly, the claim warrants dismissal (see Tatta v State of New York, 19 AD3d 817).
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 105169.

January 19, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims