New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2007-037-501, Claim No. 105516


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:
Erick Smith, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Richard B. Friedfertig, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 29, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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 Exhibit B).

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 sustained.

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 [1990], lv denied 76 NY2d 701 [1990]; Kagan v State of New York, 221 AD2d 7 [1996]). 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 [1993]).

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 [1999], citing Parker v State of New York, 242 AD2d 785, 786 [1997]). 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 [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]).

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 [1996], lv denied 88 NY2d 814 [1996]; see Duffen v State of New York, 245 AD2d 653, 654 [1997], lv denied 91 NY2d 810 [1998]). 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 [2005]).

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 dismissed.

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 [1986]; 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.


May 29, 2007
Buffalo, New York

Judge of the Court of Claims