New York State Court of Claims

New York State Court of Claims

MITCHELL v. THE STATE OF NEW YORK, #2007-037-507, Claim No. 102265


Case Information

1 1.The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Kelvin Mitchell, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. Lonergan, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 7, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, a pro se inmate, alleges in Claim Number 102265 that Defendant’s agents failed to provide him with adequate and timely medical care when he was an inmate at Gowanda Correctional Facility (Gowanda) and otherwise in the custody of the New York State Department of Correctional Services (DOCS). Trial of this matter was held at Wende Correctional Facility on September 6, 2007.

Claimant testified that on the evening of July 12, 1998 he sustained an injury to his right leg or ankle while playing basketball in the main yard at Gowanda. He was immediately seen by medical personnel who noted that Claimant’s ankle was slightly swollen but he had good range of motion in his toes and there was no noticeable deformity. His leg was placed in an air cast, he was administered pain medication, provided crutches and instructed to return to the facility clinic the following morning to see a doctor. The Inmate Accident Report (Defendant’s Exhibit A) and Claimant’s Ambulatory Health Record (AHR) (Defendant’s Exhibit B) for that day confirm the treatment, as well as his visit to the clinic on July 13, 1998, when he was examined by a medical doctor who ordered x-rays and applied a splint to the injured leg. A notation in his AHR under date of July 14, 1998 (Defendant’s Exhibit C) indicates that the x-rays revealed a comminuted fracture of the distal right fibula with minimum displacement and orthopaedic consults were ordered which occurred at Erie County Medical Center (ECMC) on July 15, 1998 and at Groveland Correctional Facility on July 16, 1998. Claimant subsequently underwent surgery at ECMC on July 29, 1998 to repair his injured leg.

Claimant contends that the delay in diagnosing and treating his injury has resulted in permanent harm and increased pain and suffering for which he seeks money damages. No other witnesses testified for Claimant.

Christina Misa, M.D., employed by DOCS as a physician at Gowanda since 1999, testified for Defendant as an expert indicating that after reviewing the Inmate Accident Report and Claimant’s AHR it is her opinion that the treatment rendered to Claimant was appropriate under the circumstances and comports with the applicable standards of care.

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 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 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” (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 diagnose and treat his injury caused additional pain, discomfort and permanent damage, the failure to present any testimony on 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 are inadequate (Tatta v State of New York, 19 AD3d 817 [2005]).

In this case, only the testimony of the Claimant has been presented in support of any 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 discomfort persisted for some time after the alleged injury does not establish that somehow the treatment given was below the accepted standards of care. Claimant does not rebut the showing by Defendant that there was acceptable treatment, or that any treatment or failure to treat is 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 at 10). To the extent the claim can be read to assert such theories, any cause of action for negligence or ministerial neglect is also dismissed. Whether, and to what degree, earlier consultations or earlier diagnoses might have alleviated some of Claimant’s past pain 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 injury process.

Defendant’s motion to dismiss the Claim for failure to establish a prima facie case, upon which decision was reserved at the time of trial, is hereby granted and Claim Number 102265 is dismissed in its entirety.


January 7, 2008
Buffalo, New York

Judge of the Court of Claims