New York State Court of Claims

New York State Court of Claims

PATTERSON v. THE STATE OF NEW YORK, #2007-040–066, Claim No. 107089


Prisoner – Alleged medical malpractice in treating Claimant. No expert testimony. Failure of proof.

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:
Rickey Patterson, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Michael C. Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
December 17, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Pro se Claimant, Rickey Patterson, has failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with his Claim. The trial of this Claim was held by video conference on November 14, 2007, with the parties at Clinton Correctional Facility in Dannemora and the judge at the Court of Claims in Saratoga Springs.

At the beginning of the trial, Claimant submitted into evidence, upon stipulation, as Exhibit 1, a copy of his Department of Correctional Services medical chart. Claimant, who was the only witness, testified that in April 2001 he was incarcerated at Bare Hill Correctional Facility in Malone (hereinafter Bare Hill) and developed a pain in his lower left side. He stated that he went to the Bare Hill clinic on numerous occasions from April through December 2001 complaining about the pain and requesting that he be permitted to see a specialist, but that the medical staff did not do anything for him. He testified that he filed a grievance against the medical staff in December 2001. He stated that he continued to complain through February 2002, when he finally was taken to an outside specialist and nothing was found. Mr. Patterson also testified that there is evidence in his medical records that he has had hepatitis C since 2005. He further asserted that he still has a slight hernia for which he was never treated and that he continues to experience pain.

The State moved to strike Claimant’s testimony regarding hepatitis C because there is no indication in the Claim that Claimant suffered from this ailment or that he was not treated for it. The Court reserved decision on the State’s motion and now denies it. The Court accepts the testimony that it is Claimant’s belief that the hepatitis C was untreated as a result of the alleged improper medical care. The Court also reserved decision on Claimant’s attempt to admit Exhibit 2 into evidence. Exhibit 2, marked for identification purposes, is a copy of Claimant’s psychiatric Outpatient Treatment Plan, dated July 30, 2007. The document records, under the heading “medical problems”, that Claimant has hepatitis C. Defendant objected to the exhibit on the grounds of relevance. Defendant noted that the first time it was made aware of Claimant’s hepatitis C was on the morning of the trial. The Court accepts the document into evidence for the limited purpose of establishing that, on July 30, 2007, Claimant had hepatitis C. It is Claimant’s assertion that he was denied proper medical treatment and that the delay in receiving proper treatment resulted in his injuries (Claim, p. 2, under heading “FIRST CAUSE OF ACTION”), which now include hepatitis C.

“It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons” (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]). In order to maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, “a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice” (Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804 [1976]). “The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by [laypersons] or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts” (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]). In a medical malpractice claim, where such issues are not within the usual experience and knowledge possessed by laypersons, expert medical testimony is required in order for claimant to meet the burden of proving that defendant’s alleged negligence constitutes a deviation or departure from accepted practice and evidence must be provided that such deviation was the proximate cause of the injury asserted (Myers v State of New York, _ AD3d_ [3d Dept 2007]; Wood v State of New York, _ AD3d_ [3d Dept 2007]; Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005]; Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; Thomas v State of New York, 10 Misc 3d 1072[A], 2005 Slip Op 52230[U]).

The Court has reviewed Claimant’s medical chart (Ex. 1) and notes the first of a number of entries in the Ambulatory Health Record concerning Claimant going to the medical clinic complaining of pain in his left side were on August 30, 2001 and then September 8, 2001. An entry dated November 6, 2001 asserts there was no evidence of a hernia. While a subsequent notation on a Request and Report of Consultation, dated May 7, 2002, states that Mr. Patterson had a small inguinal hernia, two reports from Dr. Jay V. Dewell, dated June 5, 2002 and July 10, 2002, state that the doctor could not appreciate any hernias or abdominal masses, although Claimant did have tenderness in the left lower quadrant. In a further report dated September 4, 2002, Dr. Dewell states that he “again, can identify no evidence of a hernia.” On June 13, 2002, Dr. Morris W. Browman at Alice Hyde Medical Center in Malone noted that CT scans of Claimant’s abdomen and pelvis were performed and indicated that Claimant’s abdomen was normal and the pelvis was unremarkable. On August 14, 2002, Dr. Browman wrote that a double contrast barium enema was performed and the results were normal. An October 2, 2002 report by Dr. Browman noted that two views of Claimant’s pelvis indicated “moderate bilateral degenerative changes” in the hips with “narrowing and osteophyte formation but no evidence of a fracture or dysplasia”.

The Court has considered all the evidence, including a review of the exhibits and listening to the witness testify and observing his demeanor as he did so. Claimant provided earnest and straightforward testimony concerning the deficiencies he perceives in the treatment he received. Mr. Patterson’s sincerity notwithstanding, the Court finds that the acts or omissions Claimant complains of cannot be assessed by the trier of fact on the basis of its common everyday experience. Thus,

in the absence of any testimony from a medical expert that the medical treatment Claimant received and the medical tests performed were improper, the Court determines and concludes that Claimant has failed to establish by a preponderance of the credible evidence that the medical care provided to him was not appropriate or adequate.

Defendant’s motion to dismiss, made at the conclusion of the trial and upon which the Court reserved decision, is now granted and the Claim is dismissed.

The Chief Clerk is directed to enter judgment accordingly.

December 17, 2007
Albany, New York

Judge of the Court of Claims