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
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.”
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
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 , 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 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 ; see also
Russo v Shah
, 278 AD2d 474, 475 ; Evangelista v Zolan,
247 AD2d 508, 509 ).
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 ;
see Hale v State of New York
, 53 AD2d 1025 , lv denied
NY2d 804 ). 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
268 AD2d 916, 917 , lv denied
95 NY2d 751 ;
Wahila v Kerr,
204 AD2d 935, 937 ).
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.
judgment be entered accordingly.