5,6 Filed papers: Claim, Answer
Robert Dystant alleges in his claim that Defendant’s agents failed to
provide him with adequate medical care while he was an inmate in the custody of
the New York State Department of Correctional Services [DOCS]. Specifically, he
appears to allege that he did not receive adequate surgical treatment for his
“abnormal bone-structure” in his left foot and/or the surgery - a
bunionectomy - was badly performed; and received inadequate medical care
thereafter necessitating further surgery. He asserts he suffers from a
“dropped toe” in that he cannot lift the big toe on his left foot or
put pressure on the toe, foot and leg, continues to have “the abnormal
bone structure that should of been removed”; and is the “victim of
unnecessary pain and suffering” as a result. [Claim Number 108482,
Generally, since Claimant is not a person authorized to issue a subpoena, he
must seek a Court order allowing the issuance of a subpoena upon proper motion.
Chopak v Marcus, 22 AD2d 825, 826 (2d Dept 1964), see Civil
Practice Law and Rules §2302 (a) and (b). Proposed subpoenas for the
Court’s signature should accompany the motion. Pursuant to this
Court’s instructions, [see Letters to Claimant dated September 14,
2006 and January 17, 2007] Claimant has brought this motion seeking the
issuance of two (2) trial subpoenas directing Dr. Shapiro and Dr. Chakavorty to
An affidavit indicating why the testimony of each witness is material and
necessary to the prosecution of the claim must be included, akin to the
pre-trial disclosure standards. See generally Civil Practice Law and
Rules §3101. In Price v State of New York, 4 Misc 3d 1008(A)(Ct Cl
2004), for example, where it was indicated that the inmate witnesses sought
were eyewitnesses to the incident in which Claimant was injured, the Court did
not find anything more than relevance by the assertion: insufficient to show
that the testimony would be necessary. As that Court stated:
Finally, if what Claimant is seeking is opinion testimony as to whether the
treatment provided Claimant was appropriate and reasonable, a subpoena
compelling such testimony is not appropriate. Claimant should understand that
an “[e]xpert witness [such as a physician] can be subpoenaed to testify to
facts within [his] [own] knowledge and to physical observations, but cannot be
compelled to give testimony concerning matters that require employment of the
expert’s expertise, education, judgment or opinion in the expert’s
particular field of expertise.” Blake v State of New York, UID
#2000-019-501, Claim No. 85065, Motion No. M-61001 (Lebous, J., filed March 15,
2000 [quoting 58 NY Jur 2d, Evidence & Witnesses, §754]).
Eliciting expert opinions at trial requires that Claimant make arrangements with
a witness before trial, including negotiation of any expert witness fee.
The line between a fact witness and an expert witness can often not be
determined until trial when the witness appears and the questions are evaluated.
Any objections regarding the substance of the questions posed would be
determined as they arise. Fristrom v Peekskill Community Hospital, 239
AD2d 315 (2d Dept 1997); Cuccia v Brooklyn Medical Group, 171 AD2d 836
(2d Dept 1991); Waters v East Nassau Medical Group, 92 AD2d 893 (2d Dept
In the affidavit in support of his present motion, Mr. Dystant states that Dr.
Shapiro “is the podiatrist who examine (sic) my left foot after the
operation and determined that the operation was unsuccessful. Dr. A Shapiro
testimony is needed to substantiate why the bunion-ectomy operation was
unsuccessful, and why the subsequent abnormal bone structure, drop left big toe
should not have happened. Additionally, conversation is needed to discuss the
abnormal bone protrusion and disfigurement.” [Affidavit in Support by
Robert Dystant, Claimant, ¶5].
In an affidavit appended to defendant’s opposition to the motion, Dr.
Andrew Shapiro states that “on April 18, 2001” he first
“began dealing with a patient by the name of Robert Dystant” who
“complained of pain in his bunion.” [Affirmation in Opposition,
Exhibit 2, ¶3]. He indicates that prior to seeing Mr. Dystant himself,
another podiatrist had used “anti-inflammatories, special shoes and
splints . . . to address . . . [Claimant’s] bunion problem.”
[ibid. ¶4]. When Claimant still complained of pain “in 2001 .
. . [Dr. Shapiro] requested a surgical consult with the orthopedic
surgeon.” [Ibid. ¶5]. Dr. Shapiro then indicates that he saw
the post-operative x-rays, and noted then that the goal of the procedure had
been met in that “the angle between the big toe and the bone behind it, .
. . was decreased to an angle . . .[Dr. Shapiro] found acceptable.”
[Ibid. ¶6]. The doctor also indicates that there is no such medical
condition “known as a dropped toe” and that a well-known risk of the
bunionectomy claimant underwent is a situation where “the big toe can slip
under the second toe.” [Ibid. ¶¶ 7 & 8]. The doctor
then concludes by saying that “[a]ttempting multiple conservative,
non-surgical treatments to relieve Mr. Dystant’s bunion pain was not only
appropriate, but strongly recommended prior to any surgical intervention.
Surgery is elective, and should be reserved for ‘last-resort’
treatments; based on evaluation of pre and post-operative x-rays, and charted
documentation of the post-operative course, it is my professional opinion that
the surgery on his left bunion did not deviate from acceptable medical standards
in this community.” [Ibid. ¶9].
A fair reading of Dr. Shapiro’s affidavit shows that while he could give
testimony concerning claimant’s treatment, he could also give his opinion
that the treatment received “did not deviate from acceptable medical
standards in this community,” [id.] were he asked.
While it would be improper for Claimant to compel this professional opinion as
stated in the affidavit, should it be volunteered, for example, on
cross-examination, unless Claimant has another expert he has hired to render
opinions whose view differs from that of Dr. Shapiro, Dr. Shapiro’s would
be the opinion before the Court. Accordingly, while the Court will sign the
subpoena directing Dr. Shapiro to appear and give testimony because Claimant has
established that his testimony is material and necessary as to the medical care
Claimant received, he is not entitled to elicit his professional opinion and, if
same is volunteered, there will be difficulty establishing the elements of this
cause of action.
In a similar vein, Claimant seeks the testimony of Dr. Chakavorty, who is a
primary care physician at Green Haven Correctional Facility, to testify with
regard to “the prolong[ed] pain and suffering, that claimant has been
subjected to since the failed bunion-ectomy operation . . . [and] will testify
to the type(s) of pain medication claimant has to take for pain, since the
failed bunion-ectomy surgery.” [Affidavit in Support by Robert Dystant,
¶6]. In an affidavit attached to Defendant’s opposition papers, Dr.
Chakavorty indicates that he first saw Claimant on December 13, 1995, and
referred him to a podiatrist at the time, who recommended a bunionectomy.
[Affirmation in Opposition, Exhibit 3, ¶¶ 3 and 4]. At that time,
“Mr. Dystant refused to have the procedure done . . . ”
[Ibid. ¶ 4]. Thereafter, Dr. Chakavorty states, “between 1997
and 2001 various things were ordered to address Mr. Dystant’s pain. He
was ordered special shoes to address the bunion situation, anti-inflammatories
were ordered as well as physical therapy. These were done in consultation with
podiatrists including Dr. Steven Moskowitz..” [Ibid. ¶ 5].
When Mr. Dystant still experienced pain on April 4, 2001, Dr. Chakavorty states
he referred him to Dr. Shapiro, who then recommended the bunionectomy.
[Ibid. ¶¶ 6 and 7]. The surgery itself was performed by an
orthopedic surgeon on May 30, 2001. [Ibid. ¶7 ]. Dr. Chakavorty
then volunteers his professional opinion that the treatment claimant received
was consistent with acceptable medical practice. [Ibid. ¶ 8].
With regard to Dr. Chakavorty, too, it is apparent that while his testimony is
material and necessary with regard to the treatment claimant received, it may
prove a mixed blessing.
In any event, Claimant has made the requisite showing of materiality, relevance
and necessity with regard to factual information concerning the medical care
received under the care of Dr. Chakavorty and Dr. Shapiro.
The physicians may be subpoenaed “in such manner as the court . . .
directs, if service is impracticable under . . . [other sections].” Civil
Practice Law and Rules § 308(5). This provision is appropriately applied in
a case such as this one, involving an incarcerated claimant who wants to
subpoena a natural person. See e.g. Matter of Onorato v Scully,
170 AD2d 803 (3d Dept 1991); Matter of Hanson v Coughlin, 103 AD2d 949
(3d Dept 1984); Matter of Davis v Coughlin, 96 AD2d 682 (3d Dept 1983).
Accordingly, Claimant may serve the subpoenas upon Dr. Shapiro and Dr.
Chakavorty by certified mail, return receipt requested.
The appearances of the doctors authorized herein are solely as fact witnesses.
They must each be tendered a $15.00 appearance fee for a day’s attendance
at trial, with the subpoena, plus 23 cents per mile each way from the place of
service to the place of trial. Civil Practice Law and Rules § 8001(a).
The proposed subpoenas Mr. Dystant submitted are not adequate, in that they do
not contain a trial date because no trial date has been scheduled. Once the
trial date is set, Claimant should immediately prepare the judicial subpoenas,
and submit them to chambers for approval and signature by the Court. If
acceptable, the Court will sign the subpoenas and return them to the Claimant
who may then serve them by certified mail, return receipt requested. Claimant
should include the statutory witness and mileage fee required by Civil Practice
Law and Rules §8001(a) with the subpoenas he serves.