New York State Court of Claims

New York State Court of Claims

WALKER v. THE STATE OF NEW YORK, #2007-030-025, Claim No. 110171


Synopsis


Inmate claim of medical malpractice and ministerial neglect not established after trial. Claimant seen by medical personnel with regularity, and attempts to arrive at a working diagnosis as to the cause of claimant’s head sores also documented. The determinations called for - including any decision to consult or then take the advice of a specialist - fall within the clinical judgment of medical providers. Accordingly, expert testimony would be required to establish whether such judgment was flawed

Case Information

UID:
2007-030-025
Claimant(s):
ELLIS WALKER
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
WALKER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110171
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ELLIS WALKER, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Ellis Walker alleges in his claim that defendant’s agents failed to provide him with timely and adequate medical care while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven), and other facilities within the control of the New York State Department of Correctional Services (hereafter DOCS). Trial of the matter was held on April 27, 2007.


Mr. Walker testified that he “has had an infection on the back of . . . [his] head for over three (3) years,” which, despite his complaints to medical personnel at Green Haven has been inadequately addressed.[2] He said “now it has spread to the top of . . . [his] head.” In 2003 he started having headaches and could not get any help, despite writing to complain to the Superintendent and the Facility Health Services Director that his provider, Dr. Mamis, was not providing him with adequate care. [See Exhibit 1, correspondence].[3] Referring to a handwritten diary of visits to medical providers, claimant cited as an example of the failure to provide care that he saw a dermatologist on April 13, 2004 who prescribed a shot for the infection on the back of his head, yet during an April 20, 2004 sick call visit he was told that the medical director - a Dr. Bernstein - said he did not need a shot. [Exhibit 1].

This claim, he said, was filed in order to get some action. He said he still has sores to this day, and has another one that is “oozing and pus-ing blood.” Claimant seeks $7,500.00 in damages.

Claimant submitted his ambulatory health record [AHR] for a period from March 4, 2004 through August 2004. [Exhibit 2].

No other witnesses testified and no other evidence was submitted.

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 Hosp.-Cornell Med. Ctr., 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, together with unexplained AHR records and facility correspondence. [See Exhibits 1 and 2]. 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. There is no medical evidence on any medical issue and thus no proof that accepted standards of care were not met. Accordingly, to the extent that this claim alleges a cause of action for medical malpractice it is 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 Hosp.-Cornell Med. Ctr,. supra; Kagan v State of New York, supra. 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 sympathizes with the claimant’s frustration and apparent physical discomfort, from the record here it seems that he has seen medical personnel with regularity, and their attempts to arrive at a working diagnosis have been constant. In reviewing the documents submitted, the court cannot help but note that the determinations called for - including any decision to consult or then take the advice of a specialist - fall within the clinical judgment of medical providers. Accordingly, expert testimony would be required to establish whether such judgment was flawed.

Claim Number 110171 is dismissed in its entirety.

Let Judgment be entered accordingly.

June 19, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[2]. All quotations are to trial notes or audio recordings unless otherwise indicated.
[3]. Exhibit 1 is a collective exhibit containing documents that had been attached to the claim filed herein. The documents include exchange of memoranda between Mr. Walker and Dr. Koenigsmann, Facility Health Services Director; Superintendent Phillips; a series of journal type entries by claimant for a period from March 1, 2004 to November 3, 2004 describing claimant’s visits to medical personnel; a complaint to the Inmate Grievance Resolution Committee (hereafter IGRC), investigative report and appeals.