New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2007-044-588, Claim No. 106455, Motion No. M-73183


Court denied defendant’s motion for summary judgment in medical negligence case. Defendant’s expert merely opined that there was no departure from good and accepted medical treatment in claimant’s case, without providing either the basis for why claimant was provided with a specific course of treatment, or what the accepted standard of medical care would be in claimant’s case

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:
November 15, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, while an inmate,[1] filed this pro se claim seeking to recover for personal injuries allegedly received as a result of negligent medical care provided to him while he was in the custody of the Department of Correctional Services (DOCS) at Sullivan Correctional Facility (Sullivan). Defendant State of New York (defendant) answered, and asserted various affirmative defenses. Discovery was conducted. Defendant now moves for summary judgment. Claimant opposes the motion. Defendant argues that although the claim is framed as negligent medical care, claimant is essentially asserting a cause of action in medical malpractice, rather than medical negligence. Defendant contends that the injury to claimant’s left thumb was adequately treated, and that the infection and related pain, suffering and swelling were attributable solely to claimant’s delay in seeking medical care.

Wladyslaw Sidorowicz, Health Services Director at Sullivan both now and at the time of the incident in question, avers that as part of his duties at Sullivan, he treated claimant in 2002 and has reviewed claimant’s medical records relevant to the left thumb injury. Sidorowicz states that on March 21, 2002, claimant reported to sick call and explained that he had injured his left thumb playing basketball two days earlier. Sidorowicz states that claimant was evaluated and diagnosed with a hematoma involving the entire nail elevation, as well as edema. Sidorowicz states that an X ray was taken, and there was no evidence of fracture or infection. Claimant was given pain medication to relieve the swelling and was treated with cold compresses and soaks. Claimant was excused from work and also advised to keep his hand elevated while resting.

Sidorowicz states that claimant was seen again on March 23, 2002 for a dressing change, and later that evening, Sidorowicz had a “tele-med” consultation with an emergency room physician. Sidorowicz states that during the consultation, a decision was made to evaluate claimant at Catskill Regional Medical Center (CRMC) emergency room for suspected post-traumatic skin infection (paronychia). Sidorowicz notes that claimant was examined at the emergency room, received another X ray which again did not reveal any fracture, and had his thumb “cleaned” and a dressing applied.[2] Claimant was given antibiotics and advised to continue the same treatment until the infection resolved. Sidorowicz states that claimant was seen by Sullivan medical personnel several times between March 23, 2002 and April 17, 2002, and that claimant received antibiotics and dressing changes on a daily basis until the thumb healed completely.[3]

Sidorowicz avers that claimant was advised that the injury had been extensive, and the thumbnail would most likely not regrow completely. Sidorowicz also states that claimant was told treatment by a specialist was not warranted as the nature of the fingernail changes was cosmetic. Sidorowicz states that claimant had 10 medical visits for his thumb from November 25, 2002 through August 17, 2004, and that there was one episode of a minor re-infection which resolved after a course of oral antibiotics. Sidorowicz opines that “[t]he entire treatment/care of [claimant] . . . was in accordance with [his] needs and the outside hospital’s recommendations” and that “[claimant’s] late reporting [of this injury] was the sole cause responsible for the infection.” Sidorowicz also opines that the loss of the thumbnail was caused by the sports-related injury. Sidorowicz further states that his opinion, within a reasonable degree of medical certainty, is that there was no departure from good and accepted medical practice and care in the treatment and care of claimant, based in part upon “[his] own examination of the inmate himself.”

Conversely, claimant argues that there is a question of fact as to whether DOCS treatment of his thumb superficially for two days, rather than undertaking minor surgery immediately, constituted a deviation from good and acceptable medical practice. Claimant argues that the opinion provided by Dr. Sidorowicz is unsupported because he never actually physically examined claimant, contrary to Sidorowicz's assertion.

Claimant’s medical records indicate that he was examined on March 21, 2002 and that he stated at that time that he had jammed his left thumb while playing basketball two days earlier. Claimant’s thumb was swollen, he could not bend it at the knuckle, and there was a question as to whether it was infected. Claimant was instructed to apply cold compresses and return if the pain and/or swelling increased. On March 22, 2002, claimant was examined and the nurse noted that the thumb was black and blue, and the hematoma at the end of the nail was twice the size. Claimant was advised to soak the thumb several times a day. Claimant was examined three times on March 23, 2002. During the morning examination, the nurse noted that the area was still black and blue with a hematoma, but there was no drainage. Claimant soaked the thumb for 20 minutes and the nurse applied antibiotic ointment and a dressing. At 4:30 p.m., it was noted that the thumb was “purplish” in color, but again no drainage was noted. Claimant was advised to continue with the soaks as prescribed and to return if the thumb started to “drain spontaneously.” Claimant was escorted to the infirmary at 8:30 p.m. and the nurse noted that his left thumb and wrist were approximately four times larger than the right thumb and wrist, and that the left thumb was purplish/black in color from the fingertip to the second knuckle, with a blister-like appearance. There was “blood noted slouching under [the] skin,” the thumb was hot to the touch and a red streak was seen approaching the elbow area. At that time, Sidorowicz was paged and he ordered claimant transported to the nearest emergency room. The notation for 11:00 p.m. indicates that claimant was returning to the facility – the abscess had been lanced and claimant was placed on antibiotic therapy. On March 24, 2002, claimant requested a dressing change and the nurse noted that there was a foul odor and a moderate amount of “purulant [sic] & bloody drainage.” Claimant soaked his thumb in a light betadine solution and a clean dressing was applied. The following day claimant’s thumb was evaluated and it was noted that claimant had been seen at CRMC and that he had paronychia. Claimant’s dressing was changed again on March 27, 2002. On March 29, 2002, claimant had a follow-up examination. At that time there was no drainage, and the edema and redness had decreased. Claimant’s thumb was to be soaked with betadine, washed with peroxide, and a dry dressing was to be applied. On April 1, 2002, it was noted that the paronychia was slowly resolving, and that the soaking, dressing and antibiotics should continue. Claimant’s fingernail was removed on April 3, 2002, and the paronychia was noted to be decreasing. Claimant was evaluated on April 5, 2002, and again it was noted that the paronychia was decreasing. The treatment was to continue with claimant himself changing the dressing once a day. Claimant had a follow-up visit on April 9, 2002 and the note indicates that the infection had resolved, and claimant was advised to continue with the dry dressing. Claimant was again evaluated on April 16, 2002 and it was noted that the edema had decreased, and the antibiotic therapy had been completed. There was no change on April 17, 2007 and claimant was scheduled for a follow-up visit on April 22, 2002.

The next notation in claimant’s medical record is for April 29, 2002, when claimant complained of throbbing in his left thumb, and he requested and received Tylenol for the pain. There was no further treatment for the left thumb until October 2002 when claimant was apparently given another course of antibiotics. Claimant was also given antibiotics for his thumb in July 2003. Claimant complained of pain in his left thumb in September 2003, although there was no apparent sign of infection. On April 16, 2004, claimant’s left thumb was swollen, and slightly red with blood and yellow pus drainage. Claimant was again placed on antibiotics, this time for five days. Other than debridement of the thumbnail on both April 30, 2004 and August 17, 2004, claimant received no further treatment for his thumb before he was paroled later in 2004.

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 Assoc., 280 AD2d 754 [2001]; Ives v Allard Chiropractic Off., 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 Assoc., 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 Off., supra; Christiana v Benedictine Hosp., 248 AD2d 910, 912-913 [1998]).

Sidorowicz has set forth various factual details of claimant’s treatment taken directly from the DOCS medical records, specifically claimant’s statements concerning the initial injury, the treatment received both at CRMC emergency room and from Sullivan’s medical personnel, and that claimant was advised the thumbnail would never regrow completely. Sidorowicz merely opines, within a reasonable degree of medical certainty, “that there was no departure from good and accepted medical practice and care in the treatment of [claimant].” However, he does not provide the basis or medical reasoning indicating why claimant was provided with the specific initial treatment of cold compresses, warm soaks, and elevation of his left hand for two days, nor does he indicate what the accepted standard of medical care would be for claimant’s injury (see Machac v Anderson, 261 AD2d 811 [1999]). Sidorowicz also does not indicate whether it was acceptable medical practice to wait for two days to determine whether there was an infection.[4]

While claimant will have the burden at trial to demonstrate with admissible expert medical testimony that defendant’s medical staff “deviated or departed from accepted practice and that such departure was a proximate cause of injury or damage” (Giambona v Stein, 265 AD2d 775, 776 [1999] [emphasis in original]), the burden on this motion for summary judgment belongs to defendant. Sidorowicz’s conclusory opinion that DOCS medical care of claimant was adequate and did not deviate from the accepted standard of care is insufficient to establish defendant’s entitlement to judgment as a matter of law (Toomey v Adirondack Surgical Assoc., supra; Ives v Allard Chiropractic Off., supra).[5] Consequently, defendant’s Motion No. M-73183 is denied, without regard to the sufficiency of claimant’s responding papers.

November 15, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion for summary judgment:

1) Notice of Motion filed on April 9, 2007; Affirmation of Joseph F. Romani, AAG, dated April 5, 2007, and attached Exhibits A through D.

2) Claimant’s “Notice of Motion in Opposition to Defendant’s Motion for Summary Judgment” filed on August 22, 2007; Affidavit of Keith Williams sworn to on August 20, 2007, and attached Exhibits A through E.

Filed papers: Claim filed on August 1, 2002; Verified Answer filed on September 3, 2002.

[1]. Claimant is no longer incarcerated.
[2]. Claimant's medical records indicate that the thumb was lanced and drained of “foul smelly purulent blood” (Attachment D to claimant's affidavit in opposition to defendant's motion).
[3]. Claimant's medical records actually indicate that the thumb did not heal completely for more than two years, as discussed infra.
[4]. The nurse who examined claimant on March 21, 2002 questioned whether the thumb was infected.
[5]. Although claimant’s affidavit in opposition to the motion sets forth various arguments concerning the adequacy of his treatment and care, claimant did not provide admissible medical proof supporting those arguments, as will be required at trial.