New York State Court of Claims

New York State Court of Claims

CARTER v. THE STATE OF NEW YORK, #2007-041-501, Claim No. 105747


Inmate claim alleging medical malpractice is dismissed for failure to offer expert medical testimony in support of the claim.

Case Information

1 1.The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
James Anthony Carter, Jr.Pro Se
Defendant’s attorney:
New York State Attorney GeneralBy: Michele M. Walls, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 13, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


In late 1999, while an inmate at Attica Correctional Facility, James Anthony Carter, Jr. (claimant) reported to sick call complaining of pain and discomfort in his left foot. In February 2000, claimant was transferred to Sing Sing Correctional Facility (Sing Sing). Through 2000 and 2001, while at Sing Sing, claimant continued to experience pain in his foot and to seek treatment at the facility for it.
Admitted into evidence as Exhibit 6, without objection, was a copy of a document entitled “NYSDOCS Request & Report of Consultation,” dated November 14, 2001, which details an examination of the claimant performed on November 13, 2001. In the “Consult Requested” portion of the Exhibit, an unidentified individual notes claimant has an “incidental bone cyst” in his left foot and that a new x-ray had been ordered. The author of the notes may have been a “P Williams,” which appears to be the name of the individual on the document requesting an “ortho” consult for claimant, although no testimony to that effect was given.
On December 11, 2001, claimant was seen by a Dr. Holder at Sing Sing, whose remarks may be found on the “Consultant Report” portion of Exhibit 6. Dr. Holder’s examination of claimant was in apparent response to the consult requested on November 14, 2001. Dr. Holder, among other comments, notes that claimant is a “Candidate for 2007-041-50100.jpg 1st Tarso - Metatarsal joint fusion + Hallux Valgus correction,” and noted elsewhere that claimant had arthritis in his left foot. In an area of the document for discussing recommended follow-up, Dr. Holder wrote “surgery.” Claimant testified Dr. Holder recommended that surgery be performed on his left foot. On Exhibit 6, below Dr. Holder’s signature and the date, is the pre-printed legend, “Consultation is a recommendation. Final determination will be made by the inmate’s NYSDOCS physician.”
Claimant further testified that Dr. John Perilli, the facility health services director at Sing Sing, declined to follow Dr. Holder’s recommendation of surgery, and on December 20, 2001 denied the recommended surgery.
Claimant filed suit on March 13, 2002 claiming the defendant’s failure to surgically treat his left foot caused him “pain and discomfort.” At trial, however, claimant testified that he eventually received surgery to his left foot on October 10, 2002, but that the delay in receiving the surgery continues to cause him pain and suffering to this day.
Claimant testified on his own behalf. He also called Dr. Mikulas Halko, an internist at Sing Sing, primarily to testify about whether Dr. Halko had opined to the claimant that the boots which the defendant had provided to claimant contributed to claimant’s foot problems. Dr. Halko testified that while it was possible he may have so opined, he could not specifically recall such a conversation some six years after the fact. Testimony was also given concerning recommended referrals by Dr. Halko of claimant to a podiatrist. Dr. Halko stated that he had recommended such referrals on more than one occasion during the time period in question.
Dr. Halko gave no testimony on the standard of medical care owed by defendant to claimant, no testimony on the quality of the medical care provided by defendant to claimant and offered no opinions on whether the medical care defendant provided to claimant met or fell short of the standard of medical care which was owed to claimant. Accordingly, the Court found Dr. Halko’s testimony to be neither germane to, nor dispositive of, the critical and relevant medical and legal issues determinative of claimant’s case.
The defendant, at the conclusion of claimant’s case, moved to dismiss the claim, arguing that the claimant had failed to meet his burden of proving a case founded in medical malpractice. The Court reserved decision on the defendant’s motion to dismiss and the defendant rested without calling any witnesses.
The defendant’s motion to dismiss is now granted. The claim is dismissed.
It "is well settled that where the State engages in a proprietary function such as providing medical and psychiatric care, it is held to the same duty of care as private individuals and institutions engaged in the same activity" (Rattray v State of New York, 223 AD2d 356, 357 [1st Dept 1996]).
Defendant was required to exercise professional medical judgment within the range of accepted medical standards in its treatment of claimant. The law is clear that "neither a medical provider . . . nor the State or governmental subdivisions employing the medical provider, may be held liable for a mere error in professional judgment" (Ibguy v State of New York, 261 AD2d 510, [2d Dept 1999], lv denied 93 NY2d 816 [1999]; Sciarabba v State of New York, 182 AD2d 892, 893-894 [3d Dept 1992]).
Conclusory allegations of medical malpractice, unsupported by competent evidence establishing its essential elements, are insufficient to state a prima facie case. Through a medical expert, it must be shown that defendant deviated from the standard for good and acceptable care in the locality where the treatment occurred and that the deviation was the proximate cause of the injury (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]; Yamin v Baghel, 284 AD2d 778, 779 [3d Dept 2001]; Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]).
"Where 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 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]).
The fact that claimant proceeded pro se does not excuse the need for expert medical opinion to demonstrate a deviation from the applicable standard of care (Duffen v State of New York, 245 AD2d 653, 653-654 [1997], lv denied 91 NY2d 810 [1998]).
Initially, the Court finds the claimant’s case is founded in medical malpractice. The claimant argues that the defendant’s failure to provide certain and specific medical treatment (surgery) injured him, causing him pain and discomfort. However, as is required, claimant failed to provide any competent, expert medical testimony that defendant’s course of treatment (or non-treatment) of claimant was anything more than a difference of medical opinion between Dr. Holder and the defendant’s medical professionals, and certainly he provided no competent, expert medical opinion that the care or non-care provided to him by defendant was professionally deficient or fell short of an accepted medical standard of care that was due him or that any such deficiency of care was the cause of injuries he sustained.
Claimant has failed to prove a prima facie case of medical malpractice against defendant. Accordingly, the claim must be, and hereby is, dismissed.
Let judgment be entered accordingly.

February 13, 2007
Albany, New York

Judge of the Court of Claims