New York State Court of Claims

New York State Court of Claims

BURGESS v. STATE OF NEW YORK, #2008-038-108, Claim No. 108393


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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael C. Rizzo, Assistant Attorney General
Frederick H. McGown, Assistant Attorney General
Michael Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 7, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, currently an inmate at Clinton Correctional Facility (hereinafter “CF”), filed this claim on October 10, 2003, seeking damages for foot pain that was allegedly sustained due to the “depraved indifference of the medical staff at Franklin [CF] for failing to follow up on the claimant’s foot problems which were diagnosed by a duly licensed Podiatrist and the intentional negligence of the current doctor assigned to the claimant’s medical care” (Claim No. 108393, filed Oct. 10, 2003, at ¶ 2). Following a decision denying claimant’s motion for summary judgment (Burgess v State of New York, UID # 2004-032-024, Claim # 108393, Motion No. M-67801, Hard, J. [dated Mar. 22, 2004]), the trial of this claim was conducted on June 28, 2007, October 30, 2007, and then concluded on December 10, 2007. The trial was conducted on all three dates by videoconference with the parties appearing at Clinton CF in Dannemora, New York and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony and the testimony of Louise Tichenor, a registered physician’s assistant (PA) employed by the New York State Department of Correctional Services (DOCS); defendant offered no witnesses.

In late February 2002, claimant’s foot was examined by Dr. Mark Lentini, who was apparently not an employee of defendant. Claimant testified that Dr. Lentini diagnosed arthritic spurs in his right foot, and that Dr. Lentini prescribed a special corrective insole for claimant’s right boot to relieve the pain in his foot. According to claimant, Dr. Lentini stated that surgery might be required if the insole did not work. Claimant received the insole on April 15, 2002 and he wore the insole for approximately eight months. It initially worked well, but on some unspecified date, a piece of the corrective insole became unglued from the insole, rendering it ineffective. Claimant testified that defendant never repaired the insole. On December 18, 2002, claimant was seen by Dr. Taeso Kim at Franklin Correctional Facility. According to claimant, x-rays were taken of his right foot, and Dr. Kim concluded that the x-rays were negative and that claimant’s foot did not require surgery. According to claimant, he complained to the medical staff about his feet on at least two other occasions after his December 18, 2002 visit with Dr. Kim. PA Tichenor testified about claimant’s diabetes and his diabetic neuropathy and its effect on his feet, but offered no testimony about the alleged arthritic spurs in claimant’s right foot or the need for surgery to correct the condition. At the close of claimant’s case, defendant made a motion to dismiss for failure to make out a prima facie case because claimant failed to offer an expert witness. The Court reserved its decision on defendant’s motion to dismiss, which is now granted.

“Whether the claim is grounded in negligence or medical malpractice, ‘[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case’” (Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]). Review of both the claim and the evidence at trial reveals that the claim rests upon three distinct theories of liability: (1) that defendant was negligent because it failed to repair the insole that was prescribed by Dr. Lentini; (2) that Dr. Kim’s differing diagnoses from Dr. Lentini’s diagnoses constituted medical malpractice by Dr. Kim; and/or (3) that defendant committed medical malpractice because it refused or failed to give claimant a second referral to a foot specialist (see Burgess v State of New York, UID # 2004-032-024, supra; Claimant’s Exhibit 1). These three theories of liability, especially the latter two, appear to be grounded in medical malpractice in that they allege errors in the exercise of medical judgment (see Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996], quoting Bleiler v Bodnar, 65 NY2d 65, 72 [1985] [a cause of action sounds in medical malpractice when conduct that is challenged “‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physican’”]). Even if the claim can be viewed as asserting ordinary negligence, however, each of claimant’s theories involve medical issues outside the ordinary experience and knowledge of laypersons, specifically: (1) whether the alleged condition in claimant’s foot required that the insole be repaired; (2) whether Dr. Kim deviated from accepted standards of medical care by drawing conclusions that differed from Dr. Lentini’s alleged conclusions; and/or (3) whether it was a reasonable exercise of medical judgment to not make a second referral to a foot specialist.

Claimant failed to offer any expert testimony – or any other competent evidence – at trial that addresses these medical issues. It is clear to the Court that claimant does not comprehend the difference between a professional medical provider (such as Dr. Kim or PA Tichenor) and an expert witness who is called to provide trial testimony on matters outside the ordinary knowledge of a lay factfinder. Despite their training and skills as medical providers, neither Dr. Kim[1] nor PA Tichenor, who was called as a fact witness, could offer expert testimony at the trial because claimant did not disclose either of them as an expert witness (see CPLR 3101[d][1]). Moreover, there was no showing that either of them would have agreed to provide expert testimony on claimant’s behalf.

In the absence of expert testimony addressing the medical issues that are presented in this claim, claimant has failed to establish a prima facie case of negligence or medical malpractice, and defendant’s motion to dismiss the claim must be granted (see Tatta v State of New York, supra; Myers v State of New York, ___ AD3d ___, 846 NYS2d 923 [3d Dept 2007]). Accordingly,

Claim No. 108393 is DISMISSED. All motions not previously decided are hereby DENIED. Let judgment be entered accordingly.

January 7, 2008
Albany, New York

Judge of the Court of Claims

[1]. Prior and subsequent to June 23, 2007, claimant attempted, on several occasions, to secure the trial testimony of Dr. Taeso Kim. Ultimately, it was determined that Dr. Kim was unavailable to testify at trial on December 10, 2007. On that adjourned date, the Court apprised the parties of the reasons for Dr. Kim’s unavailability. After extended colloquy with the Court, claimant abandoned his efforts to call Dr. Kim as a witness, and the record was closed.