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
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,
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
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.