While housed at Clinton Correctional Facility (CCF) in October 2003, Christopher
Clark (claimant) experienced pain in his right eye. He reported to sick call on
Saturday, October 11, 2003 and was seen by a facility nurse. He returned to
sick call on Tuesday, October 14, 2003 and Wednesday, October 15, 2003, was seen
by Dr. Snyder (phonetic spelling) and was diagnosed with conjunctivitis or
“pink eye.” Returning to sick call again on October 16, 2003, he
was referred to Champlain Valley Physician’s Hospital Emergency Room, seen
by Dr. Philbert (phonetic spelling), and diagnosed as having
“shingles,” otherwise known as Herpes Zoster.
Claimant alleges the failure of defendant to timely diagnose and medicate his
condition of shingles resulted in facial scarring and the loss of some vision in
his right eye. Further, claimant alleges defendant prescribed the wrong
medication for his condition.
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 is 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 ; 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 ; see Tatta v State of New
York, 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 [3d Dept1997], lv
denied 91 NY2d 810 ).
Claimant was his only witness. At the conclusion of claimant’s case,
defendant moved to dismiss the claim for failure of claimant to make a prima
facie case. The Court reserved decision. The Court now grants
defendant’s motion to dismiss the claim.
Claimant’s case is founded in medical malpractice. In order to prove his
case, claimant is obligated to produce competent expert medical proof setting
forth the standard of care obligated to be provided to him by defendant and to
further produce expert medical testimony or proof establishing the failure of
defendant to provide such care, and that the failure to provide such care was
the proximate cause of the injuries he sustained. The claimant has failed to
present any such testimony or documentary evidence.
Accordingly, defendant’s motion to dismiss the claim for failure of
claimant to make a prima facie case founded in medical malpractice is granted.
The claim is dismissed.
All motions not previously decided are hereby denied. Let judgment be entered