Anthony Dobbin (claimant) complains of medical care and treatment he received
at Clinton Correctional Facility (Clinton) between April, 2001 and January,
2002. Claimant sought medical treatment during this time period for a rash
which had developed on his shoulders, back and between his legs. Alleging
inadequate medical care, claimant states the rash itched, spread in area on his
body, created purple bumps and permanent black spots and ultimately resulted in
Although additionally claiming at trial that the defendant’s alleged
failure to follow certain of its internal protocols regarding medical treatment
of inmates constituted “administrative negligence” (see
Kagan v State of New York, 221 AD2d 7 [2d Dept 1996]), the claim is
clearly for medical malpractice and is expressly couched in those terms.
In his claim, Mr. Dobbin states, “[o]n and prior to the 14th day of
January, 2002, the defendant disregarded their duty by negligently and
carelessly as being a provider for the claimant, Anthony Dobbin, delayed in the
diagnose and treatment; rendered inadequate medical care; less effective
treatment; and ineffective treatment allowing rashes to spread on claimant . . .
Among several other allegations, he later adds:
“The defendant failed to provide claimant with competent medical care
despite numerous and continuous complaint’s, the defendant failed to
provide a physician who possessed a reasonable degree of learning and skill.
The defendant failed to exercise it’s duty to provide reasonable care and
diligence in affording proper medical care .
The claimant received medical treatment which was performed in an extremely
careless and negligence manner .
The defendant failed to utilize the services of necessary medical specialist in
a timely manner.
The defendant failed to prescribe a proper and necessary medical plan to
correct and determine the cause of the claimant’s medical problem with a
Claimant was the only witness at trial. At the conclusion of his case,
defendant moved to dismiss for failure of claimant to make a prima facie case
due to failure to produce expert medical testimony or documentary evidence to
prove his claim of medical malpractice. Having reserved decision on
defendant’s motion at trial, the Court now grants defendant’s motion
Claimant provided substantial testimony involving his attempts to have a rash
which developed in April, 2001 be medically treated to his satisfaction by
defendant. He recounted many visits to sick call at Clinton, the resulting
provision of medicinal creams which proved to be unsatisfactory in lessening the
effects or arresting the spread of the rash, his attempts to see a doctor and to
have biopsies performed, a delay in seeing a dermatologist and finally, that due
to the ineffective and delayed medical treatment for his condition, the rash
spread and discolored portions of his skin.
He testified that although a “dermatology consult” was to have been
requested by defendant in September of 2001, he was not seen by a
dermatologist until March, 2002. The proof was unclear as to whether the
consult was actually ordered in September and simply took six months for the
visit to be arranged or that there was a delay in defendant submitting the
request for the dermatology referral.
Moreover, a number of exhibits were introduced seeking to establish
defendant’s failure to follow certain practices and policies regarding the
medical treatment of inmates. Exhibit 5 has language which provides:
“Nursing staff may distribute the appropriate OTC medications per protocol
for three days. Inmates presenting to sick call three times for persistent
symptoms MUST BE SCHEDULED FOR PHYSICIAN’S CALL OUT. If the
physician, physician assistant, nurse practitioner decides to continue the OTC
medication, it will then be written as a prescription and noted in the
Claimant contended that despite repeatedly presenting himself at Clinton sick
call starting in late summer of 2001 for unabated problems with the rash,
although his testimony on this point was not specific, he did not
see a physician for the condition until the dermatologist appointment of
March, 2002. He further alleges the defendant’s failure to follow
protocols set forth in Exhibits 5, 6 and 7 amounted to “administrative
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 , lv denied
91 NY2d 810 ).
Regardless of what manner claimant chooses to characterize defendant’s
failures, the basis of claimant’s lawsuit is founded in medical
malpractice (see McDonald v State of New York, 13 AD3d 1199 [4th
Dept 2004]). Although claimant suggests lay testimony is sufficient to
understand the causes, symptoms, pathology, treatment and consequences of poor
or no treatment for a rash, the Court cannot agree.
The word “rash” is an easily understood concept, but it is
medically imprecise. While it can commonly be understood to be some kind of
skin condition, a specific skin condition can have any number of etiologies,
symptoms and pathologies. If, how, and when to treat the condition and the
consequences of failure to do so, whatever the condition’s specific
genesis and nature, required expert medical testimony or proof. There was
Further, no expert medical proof was provided to establish the standard of
medical care owed to claimant by defendant, or that the treatment he did receive
at the hands of defendant fell short of the standard of care he was owed. As
such, whether defendant met or fell short of fulfilling internal policies
regarding inmate medical care, and no finding regarding that issue has been
made, is not probative on the matter of negligence since claimant must first
establish, through expert medical proof, that the policies which defendant
ostensibly failed to follow were at least equivalent to the minimum
standard of medical care to which claimant was entitled (see Gibson v
D'Amico, 97 AD2d 905 [3d Dept 1983]), lv denied 61 NY2d 603 ,
rearg denied 64 NY2d 646  ; Yamin, 284 AD2d at 779). He did
not do so.
Moreover, even assuming that claimant’s introduction of an internally
created protocol which defendant may have failed to follow established an unmet
standard of care to which he was entitled, the claim must nevertheless fail
since “claimant must establish that the negligence of the State or the
State's deviation from the accepted standard of care was the proximate cause of
the claimant's injuries” (Lowe v State of New York, 35 AD3d 1281,
1282 [4th Dept 2006]), and “even assuming improper delay in providing
treatment, it was incumbent upon claimant to show by competent expert evidence
that the delay was a cause of his alleged ensuing medical problems”
(Trottie v State of New York, 39 AD3d 1094, 1095 [3d Dept 2007]).
For all of the foregoing reasons, claimant has failed to establish a prima
facie case establishing defendant’s negligence. Defendant’s motion
to dismiss is granted. The claim is dismissed.
All motions not previously decided are hereby denied. Let judgment be entered