Claimant seeks damages for injuries he allegedly sustained during his
incarceration at Sing Sing Correctional Facility (Sing Sing) as a result of
defendant’s medical malpractice.
Prior to claimant’s incarceration, he fractured his ankle and underwent
surgery inserting a plate and five screws. During claimant’s
incarceration at Sing Sing, claimant began to experience pain and swelling in
his ankle. He requested an appointment with a specialist and sought to have the
hardware removed. Claimant was first seen by Physicians Assistant Muthra and
claimant’s case was reviewed by Sing Sing’s Medical Director, Dr.
John Perilli. In August 2005, Perilli determined that the hardware should not
be removed. Claimant filed a grievance regarding his treatment (Ex. 3).
Subsequently, in November 2005, claimant was seen by a specialist, Dr. Holder,
who determined that the hardware should be removed and surgery was performed on
March 29, 2006.
Perilli testified that when claimant arrived at Sing Sing his x-ray report
indicated that his ankle had healed and there was no acute bone injury and no
arthritic change (Ex. A, p 40). According to Perilli, the x-rays and physical
findings did not indicate the need for surgery or removal of the hardware in
claimant’s ankle. On October 13, 2005, however, claimant complained of
increasing pain and Perilli approved an orthopedic consultation for claimant.
On November 15, 2005, claimant was examined by Dr. Holder and surgery was
recommended. Holder found a reaction around one screw that warranted its
removal. Perilli approved the surgery and it was performed at Mt. Vernon
Hospital in March 2006.
Perilli maintained that the standard practice was to treat a patient
conservatively and that hardware was not routinely removed unless it was broken,
it had migrated, or an infection had developed. In Perilli’s view,
claimant was appropriately evaluated and monitored and was provided with the
proper treatment given his condition as it was presented. Once claimant’s
condition necessitated surgery, it was performed in a timely and appropriate
manner and the care claimant received did not depart from the acceptable
standards of care. Perilli noted that the hardware removal was a non-emergent
surgery which had not been indicated earlier in the course of claimant’s
It is well settled that the State owes a duty of ordinary care to provide its
charges with adequate medical care (see Mullally v State of New
York, 289 AD2d 308; Kagan v State of New York, 221 AD2d 7, 8). To
prove that the State failed in its duty and committed medical malpractice,
claimant must establish by a preponderance of the evidence that the State
departed from good and accepted standards of care and that such departure was a
substantial factor or proximate cause of the alleged injury (see
Mullally v State of New York, supra; Kaminsky v State of New
York, 265 AD2d 306). A departure from good and accepted medical practice
cannot be inferred from expert testimony; rather the expert must expressly
state, with a degree of medical certainty, that defendant’s conduct
constitutes a deviation from the requisite standard of care (see
Stuart v Ellis Hosp., 198 AD2d 559; Sohn v Sand, 180 AD2d 789;
Salzman v Alan S. Rosell, D.D.S., P.C., 129 AD2d 833).
Claimant must prove, inter alia, that his “injuries proximately resulted
from the defendant’s departure from the required standard of
performance” (Tonetti v Peekskill Community Hosp., 148 AD2d 525).
Here, claimant offered no evidence to establish the requisite standard of care
or that the treatment rendered constituted a departure from the applicable
standard. Significantly, claimant failed to present any competent medical
evidence to support his allegations of medical malpractice. Claimant’s
own unsubstantiated assertions 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; Quigley v
Jabbur, 124 AD2d 398). Moreover, the evidence is inconclusive and purely
speculative as to whether such conduct, even if negligent, was a proximate cause
of claimant’s condition (see Naughton v Arden Hill Hosp.,
215 AD2d 810 [even assuming defendant committed malpractice in its failure to
diagnose and admit patient to hospital, there was no proof of proximate cause,
i.e., that, had the patient been admitted, the risk of a heart attack would have
been prevented or lessened]; Brown v State of New York, 192 AD2d 936 [no
proof that delay in treatment contributed to the loss of claimant’s
larynx]). “Moreover, even assuming improper delay in providing treatment,
it was incumbent upon claimant to show by competent expert evidence that the
delay was a cause of his alleged ensuing medical problems” (see
Trottie v State of New York, 39 AD3d 1094, 1095).
ACCORDINGLY, LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 112400.