New York State Court of Claims

New York State Court of Claims

JENNINGS v. THE STATE OF NEW YORK, #2007-030-006, Claim No. 109448


Inmate claimant's subjective complaints of pain and disagreement with the types of medication prescribed suggest medical malpractice as opposed to negligence, since the standards for examination and the decisions to prescribe medications inherently require the expertise of a physician, and are not matters within common knowledge. Without medical expert claimant cannot establish deviation from established norms. Pre-incarceration medical treatment - while different from that received through DOCS - unexplained by expert. Claim dismissed after trial on defendant’s motion

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):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
February 16, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Michael Jennings alleges in his Claim that Defendant’s agents failed to provide him with adequate medical care while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS) at various correctional facilities. Trial of the matter was held at Downstate Correctional Facility (hereafter Downstate) on December 8, 2006.
Claimant testified that “since coming into the system in September, 2000”
there has been an “ongoing problem” with obtaining treatment for his medical problems. When he first arrived at reception at Downstate, as a “state-ready” inmate transferred from the New York City Department of Correction facility at Rikers Island, he said that the commitment papers from Rikers had been marked “medical” referring to his medications, yet no such notation appeared in the State medical file. Consequently, medication that had been prescribed for eight (8) years prior to his incarceration - since a 1992 car accident - some of which contained narcotics, but all prescribed by his private pain management specialist, Dr. Ronny Hertz, was not administered to him. A letter to the “Department of Correction” dated August 22, 2000 from Dr. Hertz from the Manhattan Center for Pain Management, specifies the medications and the reasons for prescribing same at the time. [Exhibit 1]. There was no indication as to whether DOCS personnel received this communication directly.
At Downstate reception Mr. Jennings gave medical personnel the letter from Dr. Hertz, and was told that the medication would be ordered. He did end up receiving the medication at Downstate. They included “duragesic patches” - that contain a narcotic - and “Oramorph, a sustained release pain medication given in the morning, that then lasts 12 hours, then another dose is given in the evening, that lasts another 12 hours.” Mr. Jennings said he also received “break through medication - like Percosset (sic) - that would last 4 hours for ‘break through’ pain.” Although it did “take about a week until he was given the medication” at Downstate, he did receive it there.
Thereafter, and on December 5, 2000, he was transferred to Attica Correctional Facility (hereafter Attica). When he was first received there, and interviewed with the medical department, the prescribed medication “was there waiting for [him] and [he] received them on a daily basis up until [he] saw Dr. Takos on February 1, 2001.” At that point, he had been at Attica for almost three (3) months.
Dr. Takos - based only upon a “visual examination” - determined he “was fine, and took [him] off the medication.” Mr. Jennings said that copies of medical records from the Manhattan Center for Pain Management containing his history were mailed to Dr. Takos by Claimant’s wife and copies of the same documents were handed to the nurse on March 13, 2001. When the documents were given to the nurse, however, they were noted on the Claimant’s Ambulatory Health Record [AHR] for that date as “old records.” [See Exhibit 2]. Claimant was seen by Dr. Takos approximately once per week, or once every two weeks, he said, because “the doctor was weaning him off medication.” An earlier notation on the February 21, 2001 AHR indicates “plan to continue this med for at least a month & possibly longer pending outcome of specialist examination.” [Exhibit 3]. Claimant testified that he did not see a specialist until seven months later, yet the medication was discontinued on April 4, 2001. Claimant argued that the medication should not have been withdrawn based upon “a visual inspection in . . . [Dr. Takos’] office that took about 5 minutes” but rather after Claimant was seen by a “spine specialist”. Claimant wrote to Dr. Takos asking that he hold off on discontinuing the medication until Claimant was seen by a specialist. On February 8, 2001, when Claimant was receiving a reduced amount of medication, Claimant wrote asking about seeing a specialist, and again asking that his medication be changed back to what had been prescribed by Dr. Hertz in 2000. [Exhibit 4]. One month earlier, on January 8, 2001, Claimant had also written to Dr. Takos providing all the doctors’ names and explaining that the medication he was receiving was not relieving his pain. [Exhibit 5].
The AHR for March 30, 2001 notes Claimant’s request for a pain specialist, and contains a referral for an MRI, which Claimant at the time told Dr. Takos “was irrelevant.” [Exhibit 6]. The AHR for April 26, 2001 notes that Claimant again gave Dr. Takos the medical records covering the eight (8) years prior to his incarceration, and also notes that Claimant’s MRI results were discussed with him. [See Exhibit 7]. The notes for April 26, 2001 - where legible - state: “Pt ambulated 160 feet . . . [with] a caine (sic) in good speed, almost rapidly with good ballance (sic). No adjusting posture . . . [with] ambulation. Pt sat & stood off regular armless chair without problem. I gave pt copy MRI 3-17-01 to read & he handed me part of his old medical records to read. He accused me of lying & said he will sue. I said, ‘I told you I would continue methadone till . . . [illegible] or . . . [illegible] pathology. I examined you, Dr. Stein orthopedic surgeon saw you & I spoke . . . [with] Dr. Fishman about your 3-17-01 MRI - No medical necessity for narcotics will continue to evaluate.” [Exhibit 7].
On March 25, 2001 Mr. Jennings wrote to Dr. Takos advising that he had seen the orthopedic specialist Dr. Takos had referred him to, but he was sent away because the MRI result was not there yet. [Exhibit 9]. On April 17, 2001 Dr. Takos discontinued Methadone, as noted on the AHR for that date. [Exhibit 8]. Mr. Jennings wrote many letters to Dr. Takos, Dr. Lester Wright, Dr. John Howard - then the regional medical director - Deputy Conway and Nurse Frisbee asking someone to intervene to allow him to see a spine specialist, or a pain specialist, and to get his medication renewed. The response was always, “if you have any concerns see the medical department.”
Mr. Jennings said he “finally saw a pain management specialist at the Rehabilitation Medicine Center for Pain Management Erie County Medical Center on September 5, 2001.” The referral form to this specialist stated as the reason for consultation: “Please schedule for pain therapy clinic. We are interested in options that do not include narcotics. MVA 1992. 2 back surgeries (93 & 94) He complains of chronic pain. History of Narcotic addiction. Mental Health DX depression. I have attached documents of work up to date - MRI, XRAY, NCV.” [Exhibit 10]. Claimant testified that he did not have a history of narcotic addition.
A report written by S. David Miller, M.D. of the Erie County Medical Center was admitted in evidence. [Exhibit 11]. Dr. Miller wrote, among other things, that “[a]t this time options for treatment are limited. You can explore pharmacologic management using non-opioid based medications, though I am not certain that you will achieve any significant degree of success . . . ” [id.]. Claimant said that he has yet to see a physical therapist, although it was recommended by Dr. Miller, but he has had some injections from time to time. Mr. Jennings said that because of his stress and complaints about this medication issue, his blood pressure has gone up, whereas it was normal prior to his incarceration.
At some point, Claimant was scheduled for another pain management visit, that was cancelled on one occasion. Claimant said that from April 4, 2001, when all pain medications containing narcotics were stopped, until August 13, 2002, he received only Motrin or Naprosen or some other minor pain medications.
On August 12, 2002 Claimant saw two more doctors at the Erie County Medical Center pain management clinic. [Exhibit 12]. The “recommended plan” on the report generated from the clinic doctors - Daniel Salcedo, M.D. and Dr. Tomas Polisoto - suggests “trigger point injections”, which Claimant indicated he received on that date, and also “re-starting” a “controlled use of narcotic analgesics” such as “Oramorph.” [id.]. In “roughly October, 2003” he received the medication recommended in this August 12, 2002 report.
Prior to October 2003 he said he received another, “liquid medication” of some kind, composed of Methadone and other ingredients. Mr. Jennings explained that patients with pain problems receive medication at Attica “twice a day - at 7 am and at 5 pm - so it is very important, as I explained to Dr. Salcedo, that they recommend medication for someone who is only going to receive it twice per day.” Claimant said that he could not take a medication in the morning that would last four hours, for example, and then complain of pain, and be “given something.” The medication was only dispensed at those times. The liquid medication, he said, was “not doing it.” “Fourteen (14) months after it was recommended, finally, the Oramorph was prescribed.”
DOCS “continues to not include the medical records” that predate his incarceration as part of his medical file. Claimant testified that throughout his incarceration with DOCS, he has engaged in repeated correspondence complaining about his pain and the lack of treatment for it, and has also filed grievances. [Exhibit 13]. In the decision denying one such grievance, filed on April 15, 2001 and denied on August 22, 2001, it is noted that the narcotic medications Claimant requested “are not medically indicated” and that Mr. Jennings was prescribed Motrin for pain relief. [Ibid.]. The decision also indicates that no abnormalities were revealed in a second MRI taken on June 9, 2001 and that “consistent with Health Service Policy Manual Item #1.21 - Health Care referrals, the Facility Health Services Directors (FHSD) have the sole responsibility for providing treatment to the inmates under their care.” [Ibid.].
Claimant estimated that since his commitment to DOCS custody, he has “spent 453 days with no pain medication at all” and “400 days with substandard/ineffective medication”. He asked for damages of “$250.00 per day for the 453 days of pain and suffering.” For the “400 days without proper or prescribed medication” he asked for damages in the amount of $200.00 per day. Claimant also sought punitive damages of $150 per day.
On cross-examination Claimant agreed that from August 2002 to October 2003 he received an “elixir of methadone or something” but repeated again that it was not effective. When asked, Claimant confirmed that as far as he knew, his wife gave an authorization to Dr. Hertz to provide records to DOCS since “she had [his] power of attorney and [he] was incarcerated”, and he assumed it was sent direct, yet his DOCS medical file did not contain the records: that, he reiterated, was part of the continued problem he could not explain. At a minimum, he knew that the telephone numbers of Dr. Hertz and his treating physician were in the medical file DOCS did have. He could not say whether he had ever executed an authorization himself to release medical records to DOCS.
No other witnesses testified, and no other evidence was admitted on Claimant’s direct case.
At the close of Claimant’s case, when Defendant moved to dismiss for failure to establish a prima facie case of medical malpractice, based primarily on Claimant’s failure to call an expert medical witness, Claimant argued that no expert was needed. He stated that the DOCS information “speaks for itself.” He said he had a documented medical condition that they refused to treat, and in that way, accepted medical practice was not followed. Medical personnel failed to review records, failed to refer Claimant to specialists and then when specialists were consulted, failed to follow suggestions of specialists. Claimant said: “If you gave it [meaning the medication] to me in the beginning, and gave it to me three (3) years later; then you should have given it to me in-between for a well documented injury.”
It is “fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons,” including proper diagnosis and treatment. Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied 76 NY2d 701 (1990).
In a medical malpractice claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A Claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. The “ ‘claimant must [demonstrate] *** that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his . . . injuries’ (Parker v State of New York , 242 AD2d 785, 786).” Auger v State of New York, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept 1976), lv denied 40 NY2d 804 (1976). A medical expert’s testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).
If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State’s employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony. Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for ministerial neglect if its employees fail to comply with an institution’s own administrative procedures and protocols for dispensing medical care to inmates. Kagan v State of New York, 221 AD2d 7,10 (2d Dept 1996).
In this case, only the testimony of the Claimant has been presented in support of any claim of malpractice. Whatever Claimant's complaints are with regard to his pain and the types of medications prescribed, it is a claim of medical malpractice, not medical negligence, that is implicated since the standards for examination and the decisions to prescribe medications inherently require the expertise of a physician. The issues in question do not involve matters within common knowledge, but call into question the adequacy of the treatment he received. Accordingly, no competent medical evidence was presented, through a treating physician or an expert witness whose opinion was based upon the available medical records, to support the allegation of medical malpractice. It is not enough for the Claimant to declare that the matter is obvious. Throughout the period described he was seen by medical personnel, his treatment was reviewed - and adjustments to medication were made. The notations medical personnel made to what portions of his AHR Claimant submitted in evidence include indications that he was physically examined - not just “visually” as he maintained - was seen with regularity by medical personnel, and was also referred with regularity to the evaluation of specialists. Indeed, AHR notes indicate that the medical records from prior to Claimant’s incarceration were indeed received, in the AHR notes dated March 13, 2001 and April 26, 2001, respectively. [Exhibits 2 and 7]. Without a medical expert witness explaining that one step or another was not taken within recognized standards of care, however, Claimant cannot establish deviation from such standards, or how one course of treatment or another falls below accepted norms. Accordingly, the claim of medical malpractice must be dismissed.
Additionally, from this record there is no indication that the actions of medical caregivers amounted to simple negligence or ministerial neglect. Coursen v New York Hospital-Cornell Med. Center, supra; Kagan v State of New York, supra cf. Jacaruso v State of New York, Claim No. 97721 (Lebous, J., dated July 2, 2002), UID #2002-019-011. To the extent the claim can be read to assert such theories, any cause of action for negligence or ministerial neglect is also dismissed.
While the Court is sympathetic to the Claimant’s subjective complaints of pain, Claimant has simply not established that the State of New York failed to provide adequate medical care.
The Defendant’s motion to dismiss for failure to establish a prima facie case, upon which decision was reserved at the time of trial, is hereby granted, and Claim Number 109448 is dismissed in its entirety.
Let Judgment be entered accordingly.

February 16, 2007
White Plains, New York

Judge of the Court of Claims

[1].All quotations are to trial notes or audio recordings unless otherwise indicated.
[2].Claimant’s testimony jumped around the time periods somewhat.