Erick Smith, pro se Claimant herein, alleges in Claim Number 105516 that
Defendant’s agents failed to provide him with adequate and timely medical
care while he was in the custody of the New York State Department of
Correctional Services (DOCS) at Gowanda Correctional Facility (Gowanda). Trial
of the matter was held at Buffalo, New York on May 1, 2007.
Claimant testified that on August 11, 2001 he fractured a bone in his right
hand as a result of an altercation with another inmate at Gowanda. Claimant
reported his injury to an officer on duty and was immediately escorted to the
facility hospital for treatment. The Inmate Accident Report (Claimant’s
Exhibit 1) indicates that Claimant complained of pain at the base of the small
finger on his right hand and an examination revealed a good range of motion with
no apparent swelling. Claimant was referred for an x-ray of his right hand
(Defendant’s Exhibit B, page 0256).
On August 28, 2001 an x-ray was taken at Erie County Medical Center which
showed a healing comminuted intra-articular fracture of the proximal end of the
right fifth metacarpal and a splint was applied (Defendant’s Exhibits E
& E1). Claimant testified that over the next several months he was
transferred from Gowanda to Auburn Correctional Facility and then to Franklin
Correctional Facility (Franklin) where he continually complained of pain and
discomfort in his right hand. He was regularly seen by medical personnel at each
facility and received various kinds of medication for pain (Defendant’s
In January 2003 Claimant was referred by a doctor at Franklin to R. Mitchell
Rubinovich, M.D., an orthopedic surgeon, for an evaluation of his right hand.
Dr. Rubinovich opined that Claimant was continuing to experience pain and
discomfort from the August 2001 fracture due to chronic osteoarthritic change,
and recommended surgery to fuse the base of the fifth metacarpal to the hamate
(Defendant’s Exhibit B, page 0278). The surgery was performed on February
19, 2003, and according to Dr. Rubinovich’s reports (Defendant’s
Exhibit B, pages 0266-0276) and Claimant’s testimony, the procedure was
successful and Claimant has made a full and complete recovery.
According to his claim and to his trial testimony, Claimant is alleging that
DOCS delayed medical treatment from August 11, 2001 to August 28, 2001, which
caused him unnecessary pain and mental anguish and precluded the initial
treating physician from repairing the fracture resulting in the necessity for
corrective surgery in 2003.
At the conclusion of Claimant’s testimony, Defendant moved to dismiss the
claim on the grounds that Claimant had failed to prove a prima facie case of
medical malpractice, as there was no expert testimony setting forth the
applicable standard of care and no expert testimony to demonstrate a deviation
from that standard or that the deviation was a proximate cause of the injury
No other witnesses testified.
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
, lv denied 76 NY2d 701 ; Kagan v State of New York,
221 AD2d 7 ). Further, it is the State’s duty to render medical care
“without undue delay” and, therefore, whenever “delays in
diagnosis and/or treatment [are] a proximate or aggravating cause of [a] claimed
injury,” the State may be liable (Marchione v State of New York,
194 AD2d 851, 855 ).
In a medical malpractice action, the claimant has the burden 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 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” (Auger v State of New York, 263 AD2d 929, 931
, citing Parker v State of New York, 242 AD2d 785, 786 ).
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
, lv denied 40 NY2d 804 ). A medical expert’s testimony
is necessary to establish, at a minimum, the standard of care (Spensieri v
Lasky, 94 NY2d 231 ).
Whether the claim is grounded in negligence or medical malpractice,
“[w]here medical issues are not within the ordinary experience and
knowledge of lay persons, expert medical opinion is a required element of a
prima facie case of medical malpractice” (Wells v State of New
York, 228 AD2d 581, 582 , lv denied 88 NY2d 814 ;
see Duffen v State of New York, 245 AD2d 653, 654 , lv
denied 91 NY2d 810 ). With it evident that Claimant is contending that
the failure to promptly treat his injury contributed to a longer period of pain
and discomfort, the failure to present any testimony regarding the effects the
alleged delay had on his condition is fatal since such facts are outside the
ordinary experience and knowledge of a layperson; Claimant’s speculation,
as well as his conclusory statements, is inadequate (Tatta v State of New
York, 19 AD3d 817 ).
In this case, only conclusory statements of the Claimant have been presented in
support of his claim of malpractice. No competent medical evidence was
presented, through a treating physician or an expert witness whose opinion was
based upon 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. The fact that pain and discomfort
persisted for some time after the alleged injury does not establish that somehow
the treatment given was below the accepted standards of care, or that any
treatment or failure to treat was a proximate cause of the injuries alleged.
Therefore, the claim of inadequate or improper medical care must be
Additionally, there is nothing in the record to indicate that the actions of
medical caregivers amounted to simple negligence or ministerial neglect (see
Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256 ;
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
must also be dismissed. Whether, and to what degree, earlier consultations or
diagnoses might have alleviated some of Claimant’s pain and discomfort is
not discernable on this record. This is not a case where it can be readily
determined without expert testimony what type of care this Claimant should have
received, and whether any alleged delay in receiving treatment caused damage
which would not otherwise have been occasioned by the disease process.
The medical records show that Claimant received regular care, from a variety of
medical personnel, but it does not show that the course of treatment prescribed
based upon the operating diagnoses deviated from some measurable standard of
care, and that any deviation caused Claimant actionable injury. It cannot be
said that “but for” the Defendant’s actions, or its failure to
act, Claimant’s physical infirmities could have been avoided.
Defendant’s motion to dismiss the claim for failure to establish a prima
facie case, upon which decision was reserved at trial, is granted and Claim
Number 105516 is dismissed in its entirety.
LET JUDGMENT BE ENTERED ACCORDINGLY.