New York State Court of Claims

New York State Court of Claims

MALLOY v. THE STATE OF NEW YORK, #2007-030-036, Claim No. 108929


Pro se inmate’s claim alleging lack of adequate medical care at correctional facility dismissed after trial. No expert testimony presented; only claimant’s. Whatever his complaints were with regard to his cold and the types of medications prescribed (or not 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 medical expertise. The issues in question do not involve matters within common knowledge, but call into question the adequacy of the treatment he received. No showing what regulations are applicable to responses to sick-call requests, to even determine whether facility failed to follow regulations.

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:
September 18, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Anthony Malloy alleges in Claim Number 108929 that Defendant’s agents failed to provide him with adequate medical care while he was housed at Green Haven Correctional Facility (hereafter Green Haven) for a Court appearance on or about December 18, 2003. He alleges that Defendant failed to place him on the sick-call list for several days while he was at Green Haven. When he returned to his “regular correctional facility”[1] - Five Points Correctional Facility - he was seen and treated by medical personnel. Trial on the matter was held on June 22, 2007.

Claimant testified that on the day he arrived at Green Haven for his court appearance, December 12, 2003, he was seen by medical personnel pursuant to his sick-call request. He said he was suffering from the effects of having been in a cell where “all the windows were open,” when he only had “one set of clothing with . . . [him], a thin sheet and a thin blanket.” Although he repeatedly asked for help, no one would close the windows, so he was “very cold.” A “crank” for the windows was required in order to close them, thus no other inmates could assist him. He testified that he put in sick-call requests in order to get attention, all of which were ignored.

On December 18, 2003 Officer Thomas, he said, was the officer completing the “night rounds.” He gave her a sick-call slip, and “she asked . . . [him] ‘are you new here?’ ” She “snatched” the slip off the “feeder patch on the gate.” Claimant explained to her he was seeking a sick-call because he was cold.

Officer Thomas then traveled down the company and continued on her rounds.

The next morning, the nurse came down saying “we don’t have you on the sick-call list.” Claimant insisted he had put in a sick-call slip, and that he was very cold. Thereafter, a lieutenant “came down the company.” Claimant explained to the lieutenant that he had put in sick-call requests every day but had been denied. Then a sergeant came along and “the lieutenant and the sergeant went arguing throughout the company about [the] situation.” Later, “grievance told . . . [him] you’re not entitled to sick call when you are in transit, which . . . [he] knew was not true.” Claimant testified that he “really needed it, . . . [his] chest was really painful from the cold.” A “couple of hours later they came and packed . . . [him] up, saying ‘you’re on the draft.’ . . . [He asked] ‘where?’ ” They packed up all of his clothes, but still did not allow him a sick call. The next morning he was moved back to Five Points. “Finally”, on December 23, 2003 he saw medical personnel at Five Points. He was treated with “some kind of flu pills.” He repeated that he had not received medical care from December 12, 2003 - when he first caught the cold - until December 23, 2003.

No other witnesses testified and no evidence was admitted. The Court also reviewed Claimant’s eight (8) page Memorandum of Law and Brief handed up on the day of trial.

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).

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. The only reference presented by Claimant of what standards or regulations should apply when dispensing medical assistance to inmates was Claimant’s reference to a failed grievance, and to a regulation that appeared to be applicable in 2006 - three (3) years after the incident alleged - that was not accepted by the court in evidence.

What the actual requirements are - if any - for responding to sick-call requests or otherwise dispensing medical care and treatment has not been established here sufficiently to show that there has been some violation of a regulation. Indeed, Claimant was seen by medical personnel who exercised discretion and dispensed - or did not dispense - medical treatment. Moreover, whether Claimant suffered any harm from alleged delays in medical treatment is not immediately evident here. The claim itself does not mention that the cell windows were open during this winter month, or that personnel refused to close the windows, suggesting some element of fabrication on claimant’s part during the trial testimony. Additionally, in the written claim Mr. Malloy mentions the “bad bad cold” as having been caught and suffered from December 12, 2003 through December 15, 2003, with no mention of requests for sick call during that period. At trial, Mr. Malloy indicated that he had requested sick call that first day, and actually saw medical personnel.

In this case, only the testimony of the Claimant has been presented in support of any claim of malpractice. Whatever Claimant's complaints were with regard to his cold and the types of medications prescribed (or not 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. Without a medical expert witness explaining that one step or another was not taken within recognized standards of care, 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, to the extent the claim can be read to assert such theories, any cause of action for negligence or ministerial neglect is dismissed.

While the Court is sympathetic to the Claimant’s discomfort while suffering from a cold, Claimant has simply not established that the State of New York failed to provide adequate medical care or failed to follow its own regulations.

Claim Number 108929 is dismissed in its entirety.

Let Judgment be entered accordingly.

September 18, 2007
White Plains, New York

Judge of the Court of Claims

[1]. All quotations are to trial notes or audio recordings unless otherwise indicated.