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
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.
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.
defendant’s motion to dismiss is now granted. The claim is
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
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
AD2d 510, [2d Dept 1999], lv denied
93 NY2d 816 ; Sciarabba v
State of New York
, 182 AD2d 892, 893-894 [3d Dept 1992]).
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
"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 ; see Tatta v State of New
, 19 AD3d 817 [3d Dept 2005], lv denied
5 NY3d 712 ).
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 , lv denied
91 NY2d 810 ).
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.