New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2007-044-008, Claim No. 109210


The State was medically negligent in failing to review or process a specialist's recommendation that an inmate undergo surgery for a shoulder condition, resulting in a delay of the surgery for 70 days. Claimant was awarded $1,400.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 2, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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 claimant's case.

“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 [1990], lv denied 76 NY2d 701 [1990]). 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 [1983]; see also Russo v Shah, 278 AD2d 474, 475 [2000]; Evangelista v Zolan, 247 AD2d 508, 509 [1998]). 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 [1985]; Weiner v Lenox Hill Hosp., 88 NY2d 784, 788, [1996]). 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.

April 2, 2007
Binghamton, New York

Judge of the Court of Claims