New York State Court of Claims

New York State Court of Claims

BASTIAN v. THE STATE OF NEW YORK, #2007-044-540, Claim No. 104744, Motion No. M-72910


State's motion for summary judgment denied in inmate's medical malpractice claim, where state's physician's affidavit first completely failed to address certain of claimant's allegations, and further opined conclusorily that there was no departure from accepted medical practice in claimant's care, without defining the appropriate standard of care in this particular instance

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: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 5, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, while an inmate,[1] filed a claim on August 17, 2001 commencing this pro se medical malpractice action alleging that he did not receive adequate medical care while he was in the custody of the Department of Correctional Services (DOCS). Defendant State of New York (defendant) answered and asserted various affirmative defenses. In January 2002, claimant filed a “Supplemental Pleadings/Addendum to Complaint” that alleged both improper prescription of medications and improper withholding of medications occurring after the initial claim was filed. Defendant objected based upon claimant’s failure to obtain the Court's approval for the

amendment. Claimant subsequently moved for permission to file an amended claim, and that motion was denied (Bastian v State of New York, Ct Cl, Dec. 9, 2002, Lebous, J., Claim No. 104744, Motion No. M-65982 [UID #2002-019-592]). On appeal, the Appellate Division, Third Department, reversed the order and granted claimant permission to file an amended claim to include, inter alia, malpractice based upon a diagnosis of diabetic retinopathy and a misdiagnosis of claimant’s carpal tunnel syndrome (Bastian v State of New York, 8 AD3d 764 [2004]). Approximately two years later, claimant filed and served an amended claim. Defendant filed and served an answer to the amended claim. Defendant now moves for summary judgment dismissing this action. Claimant opposes the motion. Claimant alleges that he entered DOCS system at Elmira Correctional Facility (Elmira) on January 16, 2001 with pre-existing diabetes, hypertension, carpal tunnel of his left (dominant) hand, chest pains and shortness of breath. Claimant alleges that although he thoroughly explained his medical condition, he did not receive any medications for his first three days at Elmira and that his blood sugar level was checked only once during his five weeks there. He claims that as a result of defendant's inappropriate medical treatment, he began to experience nausea and dizziness in addition to his other symptoms. Claimant then alleges that he was transferred to Groveland Correctional Facility (Groveland) on February 23, 2001, where he continued to experience dizziness, nausea, chest pains and shortness of breath. Claimant alleges that even though he went to sick call three times and was examined by nurses, he never saw a physician during his four-week stay at Groveland. In March 2001, claimant was transferred to Collins Correctional Facility (Collins).

Claimant alleges that when Dr. Joseph Tan examined him at Collins, Tan changed his blood pressure medicine even though claimant explained that the medication he was then taking was the only blood pressure medicine that did not make his feet swell. Claimant asserts that he saw Tan several times thereafter, complaining that his feet were swollen and extremely painful, but Tan took no action. Claimant alleges that Tan’s treatment for the carpal tunnel syndrome was to give claimant two injections of cortisone, which claimant asserts is not appropriate for a diabetic. Claimant states that even though his blood sugar level was extremely high,[2] Tan took away one of claimant’s two diabetic medications. Claimant alleges that his blood sugar levels were consistently high from the time that he arrived at Collins until June 2002 and that defendant's failure to control this condition caused his diabetic neuropathy and diabetic retinopathy. Claimant further asserts that even though he was diagnosed with carpal tunnel syndrome by a neurologist before he entered the DOCS system, defendant’s physicians initially acknowledged the diagnosis and failed to take any action, and then temporarily determined that he did not have carpal tunnel syndrome, misdiagnosing the problem. After the physicians again determined that claimant did have carpal tunnel syndrome, surgery was performed. Claimant contends the delay in performing surgery has seriously affected the use of his left hand.

Dr. Tan, currently Health Services Director at Collins Correctional Facility, submitted an affidavit in support of defendant's motion, stating that he treated claimant from March 15, 2001 through June 7, 2001, while claimant was housed at Collins I. Dr. Tan's affidavit indicates that

from June 2001 through claimant’s release in May 2004, claimant was treated by Doctors Cetin and Bagsil while at Collins II.[3] In preparing the affidavit, Tan reviewed claimant’s medical records maintained at Collins. Tan states in his affidavit that claimant’s past medical history is significant as he suffered from a heart attack in 1981; a Transient Ischemic Attack in 1994; a right-sided intracranial hemorrhage with a resultant right scalp craniotomy scar from a depressed skull fracture requiring subsequent placement of a plate and causing residual left arm weakness, all secondary to a motor vehicle accident in 1989; cerebral atrophy shown in a CT scan performed in 1993 (although a 1994 CT scan was normal and a 1995 CT scan showed no cerebral atrophy); short term memory loss in 1994; and left hand cramping in 1995. Tan states that a neurological exam performed in 1994 indicated “shielding from distal to proximal to pin prick on the right leg, but not so much the left,” that claimant’s deep tendon reflexes were active and symmetrical, except that he did not have ankle jerks, and there was no Babinski sign.[4] Tan also indicates that claimant suffers from non-insulin dependent diabetes mellitus since 1994, exogenous obesity, hypertension since 1986, carpal tunnel syndrome (left), chest pain, diabetic neuropathy, and mild diabetic retinopathy.

According to Tan, he first examined claimant on March 16, 2001.[5] Claimant was complaining of shortness of breath and exertional difficulty breathing. Tan states in his affidavit that at that visit, a measurement of claimant’s blood sugar level for the 3 months prior to the test was high at 8.7.[6] Tan's affidavit indicates that he made some changes in claimant's medications at that time. Tan also ordered a stress test which was ultimately performed on April 11, 2001 at Wyoming County Community Hospital.[7]

Tan further states in his affidavit that claimant complained of left carpal tunnel syndrome on April 4, 2001 for the first time. A test routinely used to diagnose carpal tunnel syndrome (a Phalen test) was performed on his left hand, and yielded positive results. Tan apparently requested at that time that claimant provide the results of his previous electromyogram (EMG) exam, conducted by a neurologist prior to claimant's incarceration. Tan's affidavit states that he again made changes to claimant's medications.[8]

Tan also avers that he administered injections of a medication to claimant’s left wrist on April 23, 2001 and May 29, 2001, and that a Phalen test performed on claimant's left wrist and hand on May 7, 2001 was negative. On May 22, 2001 claimant complained of a tingling and burning sensation in both feet. Tan opined that claimant was suffering from diabetic neuropathy which is an expected complication of poorly controlled diabetes.[9] Shortly thereafter, claimant was transferred to Collins II and was placed under the care of Doctors Cetin and Bagsil until he was granted parole in May 2004.

Tan states that he reviewed the remainder of claimant’s medical records in preparing his affidavit, which states that on June 7, 2001, Dr. Cetin had a lengthy discussion with claimant and made further changes in his medications. According to Tan, claimant refused to take his mental health medication on July 26, 2001, refused to go to the ophthalmology clinic on August 1, 2001, refused to see the doctor on August 21, 2001, refused to go for mental health evaluations on August 22, 2001 and August 29, 2001, refused his regular diabetes blood test on August 22, 2001 and refused to go to the orthopedic clinic on September 20, 2001.

Tan states that an eye test performed on June 2, 2002 revealed that claimant had baseline diabetic retinopathy. Tan indicates that an EMG nerve conduction study of claimant’s left wrist and hand, performed on August 7, 2003, revealed moderate degree of left carpal tunnel syndrome as well as sensori-motor polyneuropathy. Tan then states that a left carpal tunnel release was performed on April 22, 2003.1[0]
In summary, Tan states that claimant came into Collins I in poor health with multiple complicated medical problems, including an elevated blood sugar level. Tan again recites his understanding of claimant’s alleged previous medical history and states that carpal tunnel syndrome of the left hand is not the only reason for his current neurological deficits. Tan opines that diabetic neuropathy from the previously poorly controlled diabetes, obesity, damage to the brain and resultant surgery, as well as claimant’s constant refusal of treatment and non-compliance with doctor’s orders, are also factors to be considered. Tan conclusorily states that claimant received excellent and appropriate medical treatment and that upon discharge, claimant’s blood sugar level had decreased. Tan opines “within a reasonable degree of medical certainty, based upon [his] training, experience, review of medical records and personal examination of [claimant], that there was no departure from good and accepted medical practice in the treatment and care given to [claimant] while an inmate in the care, custody and control of [DOCS].”

It is well settled that the defendant’s burden on a motion for summary judgment in a medical malpractice action “can be met by the submission of affidavits and/or deposition testimony and medical records which rebut plaintiff’s claim of [medical] malpractice with factual proof” (Horth v Mansur, 243 AD2d 1041, 1042 [1997]; see Suib v Keller, 6 AD3d 805, 806 [2004]; see also Toomey v Adirondack Surgical Assocs., 280 AD2d 754 [2001]; Ives v Allard Chiropractic Office, 274 AD2d 910, 911 [2000]). An affidavit in support of the motion may even be submitted by a defendant physician, as long as “the affidavit is detailed, specific and factual in nature and does not assert in simple conclusory form that the physician acted within the accepted standards of medical care” (Toomey v Adirondack Surgical Assocs., supra, at 755; see Suib v Keller, supra, at 806). Once the movant meets that obligation, the burden shifts to the opponent to submit competent evidence, typically in the form of an expert medical opinion, which demonstrates the existence of a genuine triable issue of fact (see Suib v Keller, supra). However, if the movant fails to meet his or her initial burden, the motion must be denied, regardless of the sufficiency of the opposing papers (Ives v Allard Chiropractic Office, supra; Christiana v Benedictine Hosp., 248 AD2d 910, 912-913 [1998]).

Tan has set forth various factual details of claimant’s treatment taken directly from the DOCS medical records, such as decreasing or changing medications and noting claimant's symptoms and conditions. However, he does not provide the basis or medical reasoning indicating why claimant was provided with any specific treatment, nor does he indicate what the accepted standard of medical care would be. Tan opines that claimant suffers from diabetic neuropathy and diabetic retinopathy, both of which may result from poorly controlled diabetes. Nevertheless, he has completely failed to address the verified allegations that claimant did not receive various medications, particularly his diabetes medication, for several days at a time, repeatedly throughout his confinement. In fact, claimant’s blood sugar levels for his first year in the DOCS system were significantly higher than normal, according to Tan's own affidavit, yet there is no explanation for decreasing his diabetic medication. Further, Tan fails to set forth any evidence that the lack of medication (whether it was actually not given to claimant, or whether the dosage was reduced) did not cause claimant’s uncontrolled blood sugar, which could support an inference that DOCS may be responsible for causing or exacerbating the diabetic neuropathy or diabetic retinopathy.

Moreover, Tan’s affidavit contains internal inconsistencies resulting in credibility questions for resolution by the Court at trial. Although Tan provides a rather lengthy list of claimant’s pre-incarceration medical history, Tan emphatically denies having ever received claimant’s previous chart.1[1] In the course of reciting such prior history, Tan indicates that claimant suffered a depressed skull fracture which resulted in the placement of a plate in claimant’s head - - the placement of which claimant denies. Claimant also states that he did not suffer any residual left arm weakness as he returned to construction work for many years after the 1989 motor vehicle accident.

In his affidavit, Tan merely opines, within a reasonable degree of medical certainty, “that there was no departure from good and accepted medical practice in the treatment and care given to [claimant].” He does not set forth in even an abbreviated fashion what the appropriate and accepted standard of care would be for a patient with claimant's various medical conditions (see Machac v Anderson, 261 AD2d 811 [1999]). While claimant will have the burden at trial to demonstrate with admissible expert medical testimony that defendant’s physician(s) “deviated or departed from accepted practice and that such departure was a proximate cause of injury or damage” (see e.g. Giambona v Stein, 265 AD2d 775, 776 [1999]), the burden on this motion for summary judgment belongs to defendant. Tan’s conclusory opinion that DOCS' medical care of claimant was adequate is insufficient to establish defendant’s entitlement to judgment as a matter of law (Toomey v Adirondack Surgical Assocs., supra; Ives v Allard Chiropractic Office, supra). Consequently, defendant’s Motion No. M-72910 is denied, without regard to the sufficiency of claimant’s responding papers.

July 5, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion:

1) Notice of Motion filed on February 5, 2007; Affirmation of Joseph F. Romani, AAG, dated February 1, 2007 and attached Exhibits A through J.

2) Affidavit of George F. Bastian III sworn to on February 22, 2007, in opposition to the motion.

Filed papers: Claim filed on August 17, 2001; Verified Answer filed on September 12, 2001; Amended Claim filed on August 23, 2006; Verified Answer To Amended Claim filed on August 28, 2006.

[1]. Claimant is no longer incarcerated.
[2]. The lab report for January 19, 2001 contained in the DOCS medical records submitted to the Court indicates that claimant’s blood sugar level on that date was 340 mg/dL, while a normal blood sugar level is 70-109 mg/dL.
[3]. Collins apparently is divided into four separate buildings and claimant was initially housed in Collins I, which Tan indicates is connected to Collins II by an “extremely long walkway.”
[4]. Remarkably, Tan has given this quite lengthy recitation of claimant’s medical history and physical ailments despite his emphatic denial that he ever received claimant’s previous medical chart (Affidavit of Joseph Tan sworn to February 1, 2007, ¶ 19). Although claimant conceivably might have provided this detailed history when he was initially admitted into the DOCS system at Elmira, defendant (through Tan) has submitted only those small portions of claimant’s medical record that it deemed relevant to this motion. If claimant did in fact provide the history, any portion of the DOCS medical record which contained it is conspicuously absent.
[5]. Notably, claimant’s medical record, as submitted to the Court, does not contain any entry for March 16, 2001.
[6]. In contrast, on the next page of his affidavit, Tan indicates that a blood sugar level of 8.7 was only “moderately elevated.” He further indicates that a normal level is less than 6.
[7]. The stress test was normal.
[8]. Interestingly, some of these changes were the exact same changes he had allegedly previously made on March 16, 2001.
[9]. During this visit, Tan indicates that claimant said he had provided Tan with his (claimant's) previous medical chart. In his affidavit, Tan “emphatically denied receiving it” and in fact avers that he has “never received this prior chart.”
1[0]. Because defendant has only provided claimant’s DOCS medical records from January 2001 through July 2002, the Court is unable to determine whether these dates are correct as written or whether any significance should be attached to the results of a test conducted after the surgery.
[1]1. With the exception of a reference to a heart attack in a note dated September 4, 2001, that previous history is not included anywhere in the DOCS medical records attached to Tan’s affidavit. As previously set forth, the DOCS medical records submitted to the Court were incomplete, and do not cover the entire period of claimant's incarceration.