Claimant, an inmate proceeding pro se, seeks to recover damages from defendant
State of New York (defendant) for negligent medical treatment due to defendant's
failure to review and/or process the recommendation of its hired physician, who
recommended surgery for claimant's shoulder pain. Trial of this matter was held
at Elmira Correctional Facility (Elmira) on January 25, 2007.
Claimant apparently fell from an upper bunk at Elmira, and landed on his back,
with resultant shoulder pain. The facility's physician, Dr. Yin, recommended
that claimant see an orthopedic specialist. Claimant was referred to Dr.
Kaempffe, an orthopedic specialist, who saw claimant on July 26, 2002 and
recommended surgery. Claimant was apparently advised that the recommendation
would be forwarded to Department of Correctional Services offices in Albany for
approval, and that claimant would then be scheduled for the surgery. On October
4, 2002, during a subsequent trip to the facility's clinic, claimant inquired
when his surgery would be scheduled. Upon a review of computer records, the
facility's nurse indicated that claimant was not scheduled for surgery.
Claimant filed a grievance regarding the matter on October 4, 2002. The
facility's investigative report dated October 9, 2002 revealed that the
doctor's report recommending surgery was not reviewed prior to being placed in
claimant's health history file. Consequently, no request for approval for the
surgery had been sent to Albany. Claimant was subsequently approved for
surgery, and underwent the procedure on November 26, 2002. He testified that
the surgery was successful, and that the pain was markedly decreased after the
surgery. He was taking ibuprofen for the pain regularly prior to the surgery,
and no longer needed it afterwards.
In addition to claimant's testimony regarding the above, his medical records
and grievance regarding this matter were placed into evidence. Those records
completely confirm claimant's testimony. Defendant rested at the close of
“It is fundamental law that the State has a duty to provide reasonable
and adequate medical care to the inmates of its prisons” including proper
diagnosis and treatment (Rivers v State of New York, 159 AD2d 788, 789
, lv denied 76 NY2d 701 ). The distinction between medical
malpractice and ordinary negligence depends upon whether the alleged wrongdoing
involves “a matter of medical science or art requiring special skills not
ordinarily possessed by lay persons [sic] or whether the conduct complained of
can instead be assessed on the basis of the common every day experience of the
trier of facts” (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978
; see also Russo v Shah, 278 AD2d 474, 475 ;
Evangelista v Zolan, 247 AD2d 508, 509 ). When the conduct in
question “constitutes medical treatment or bears a substantial
relationship to the rendition of medical treatment” the claim is one for
medical malpractice, not common-law negligence (Bleiler v Bodnar, 65 NY2d
65, 72 ; Weiner v Lenox Hill Hosp., 88 NY2d 784, 788, ). An
error in transcribing a treatment or medication condition code, as opposed to
making the wrong diagnosis or prescribing the wrong treatment, would be an issue
of common-law negligence (Rivera v State of New York, Ct Cl, Nov. 30,
2006, Fitzpatrick, J., Claim No. 110600 [UID # 2006-018-537]).
Claimant clearly states a cause of action for medical negligence. Defendant
was negligent in not complying with its procedure to review or process the
recommendation for surgery made by Dr. Kaempffe. The facility's records show
that the doctor's recommendation was made on July 26, 2002. Although the
document reporting the results of the investigation of claimant's grievance was
dated October 9, 2002, claimant's inquiry to the nurse occurred on October 4,
2002. Absent any evidence to the contrary, the Court finds that the facility
immediately arranged for review of the recommendation on October 4, 2002.
Had defendant not been negligent, claimant would have had his surgery earlier,
thus avoiding a period of pain and suffering (see e.g. Stevenson v State of
New York, Ct Cl, Dec. 20, 2002, Scuccimarra, J., Claim No. 104709 [UID #
2002-030-089]. Given no evidence to the contrary, the Court finds that
claimant's surgery was delayed by 70 days, the number of days between when the
recommendation was made (July 26, 2002) and when it was presumably processed
(October 4, 2002), and that claimant's pain and suffering was therefore
increased by a commensurate amount of time. Claimant is awarded $1,400.00 in
damages for his pain and suffering attributable to defendant's negligence in
failing to review Dr. Kaempffe’s recommendation in a timely manner and
thus unnecessarily delaying claimant’s surgery.
To the extent that claimant has paid a filing fee, it may be recovered pursuant
to Court of Claims Act § 11-a (2).
Let judgment be entered accordingly.