New York State Court of Claims

New York State Court of Claims

MORENE v. THE STATE OF NEW YORK, #2007-044-009, Claim No. 109831


After trial, Court held that inmate's claim for defendant's refusal to seek opinion from second medical specialist regarding ear pain sounded in medical malpractice, rather than medical negligence, as the issue could not be resolved by a layperson. Therefore, claimant's failure to introduce expert testimony that the consultation should have been provided required dismissal of the claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

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

Signature date:
March 14, 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 its refusal to seek an opinion regarding his health care from a second medical specialist for ear pain caused by metal fragments in the area of his right ear. Trial of this matter was held at Elmira Correctional Facility on January 25, 2007.
Claimant had been shot in the back of his neck in 1987 (prior to his incarceration), and the bullet exited his head near the right ear. He began complaining of ear pain sometime in 2000, while incarcerated at Attica Correctional Facility, according to the health records maintained by the Department of Correctional Services (DOCS). An X ray taken around that time showed bullet fragments in the right side of his skull. In 2002, while claimant was residing at Southport Correctional Facility, he was referred by one of the facility's physicians, Dr. John Alves, to an otolaryngological specialist, Dr. Kamal Pathak.
The referral was apparently made because of claimant's continuing complaints of pain and decreased hearing. A note in the 2002 health record regarding the referral indicates that analgesics and NSAIDS were not providing relief.
On December 3, 2002, claimant was seen by Dr. Pathak, who advised that claimant be scheduled for a CT scan of his skull and brain. A CT scan was conducted, and Dr. Pathak's April 1, 2003 report regarding his review of that scan states: “Reviewed CAT Scan. [Patient] has tiny fragments of metal lodged on various part [sic] of the temporal bone. These do not require removal.”
In 2004, Dr. Alves again referred claimant to Dr. Pathak because of claimant's ongoing complaints that the pain was not being controlled by the medication he was being given. Dr. Pathak's report references his prior consultation and report regarding claimant's ailment. The report states in part: “I do not believe small fragments can be found to remove. May be worthwhile referring to Upstate for 2nd opinion.”
Dr. Alves testified at trial on defendant's behalf. He stated that he did not refer claimant to another specialist, as it was his professional medical opinion that another referral was not medically necessary, that surgery would not relieve the pain, and that claimant's treatment was being adequately managed by DOCS. Claimant's contention is that defendant is negligent for failing to obtain the second opinion.
In support of his claim, claimant submitted some of his health records, and a DOCS policy dated June 14, 1991 entitled “Inmate's Request for Health Care Provider of Choice.” Claimant argues that this policy provided him the right to a second opinion at defendant's expense regarding his medical issues. However, the pertinent substance of this policy is that an inmate may be allowed to select a medical consultant under certain conditions, but that the cost of such consultation may not be paid by the State of New York, and moreover while any recommendations by the consultant will be considered, the responsibility and decisions regarding care of the inmate rest with DOCS and the appropriate facility physician. Obviously, this policy does not impose a duty upon defendant to seek a second medical opinion from a specialist.
Claimant briefly testified regarding the severity and location of the pain, and about the types of medication he takes, and the frequency with which he takes them. At the conclusion of the trial, defendant moved to dismiss the claim on the ground that claimant had failed to meet the burden of proof required for a case alleging medical malpractice. The Court reserved decision on defendant's motion.
“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 or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the 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]).
In a medical malpractice case, claimant has the burden of proving that the medical provider “deviated from accepted medical practice and that the alleged deviation proximately caused his [or her] injuries” (Parker v State of New York, 242 AD2d 785, 786 [1997]; see Hale v State of New York, 53 AD2d 1025 [1976], lv denied 40 NY2d 804 [1976]). Claimant must present expert testimony to the effect that defendant’s conduct was a deviation from the accepted standard of care and that such deviation caused claimant’s injury (see Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916, 917 [2000], lv denied 95 NY2d 751 [2000]; Wahila v Kerr, 204 AD2d 935, 937 [1994]).
Claimant's allegations in this instance state a cause of action for medical malpractice, rather than for medical negligence. Whether or not another opinion by yet a second specialist should have been sought under these precise circumstances is clearly not a question that can be answered by a layperson. Consequently, claimant’s failure to introduce expert testimony that defendant should have provided him with a consultation with another medical specialist (based on the portion of Dr. Pathak's May 4, 2004 report which stated that a second opinion might be worthwhile), is fatal to his cause of action.
Defendant’s motion is granted and Claim No. 109831 is dismissed.
Let judgment be entered accordingly.

March 14, 2007
Binghamton, New York

Judge of the Court of Claims

[1]. Dr. Pathak was not in defendant's employ. He has a contractual arrangement with defendant for treatment of inmates when they need more specialized otolaryngological care than the prison facility can provide.
[2].Claimant could have satisfied the requirement to introduce expert testimony by either calling his own witness or eliciting the supporting evidence from Dr. Alves.