New York State Court of Claims

New York State Court of Claims

FIGUEROA v. THE STATE OF NEW YORK, #2007-010-035, Claim No. 112400


Inmate claim for inadequate medical care, hardware not removed from ankle. No departure form good and accepted 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):

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 13, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 treatment.

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).


August 13, 2007
White Plains, New York

Judge of the Court of Claims