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
- 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
Claim Number 108929 is dismissed in its entirety.
Let Judgment be entered accordingly.