New York State Court of Claims

New York State Court of Claims

PACK v. THE STATE OF NEW YORK, #2008-041-502, Claim No. 109719


Medical malpractice claim dismissed where claimant fails to present expert medical testimony.

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:
New York State Attorney GeneralBy: Michael C. Rizzo, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 14, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Michael Pack (claimant), while an inmate at Clinton Correctional Facility (Clinton) in 2004 and housed in a cell with a bunk bed, sought, for medical reasons, authorization for bottom bunk privileges. The bunk bed in question, having no ladder, required claimant to manually hoist himself to the top bunk, his assigned bunk position.

Michael Pack (claimant), while an inmate at Clinton Correctional Facility (Clinton) in 2004 and housed in a cell with a bunk bed, sought, for medical reasons, authorization for bottom bunk privileges. The bunk bed in question, having no ladder, required claimant to manually hoist himself to the top bunk, his assigned bunk position.

In the few years prior to 2004, claimant had had wrist surgery to both his right and left wrists, resulting, according to the claimant, in tendon and nerve damage. After seeking a bottom bunk assignment from a correction officer, he was instructed that he was required to seek medical authorization to be assigned a “bottom bunk permit.” This he sought.

On June 7, 2004, claimant was examined by Clinton registered nurse Timothy Quain. Nurse Quain performed a physical examination of the claimant and reviewed his extensive prison medical records which included descriptions of prior medical treatment to both of claimant’s hands, wrists and forearms. Nurse Quain testified to 17 years of experience as a Clinton RN, to having had experience with wrist tendons and nerves and further related that he had, for 17 years, been annually evaluating between 100-150 inmates seeking bottom bunk privileges, performing thousands of such evaluations.

After his examination of claimant, nurse Quain declined to issue him a bottom bunk permit. Nurse Quain explained his denial as follows: 1) claimant’s last wrist surgery had been over one year earlier and that tendons, in such circumstances, required two to three months to heal post-surgery; 2) having checked claimant’s arms and grasps, he determined claimant had “reasonably good grasps”; and 3) claimant was a “healthy, young man.” Moreover, nurse Quain determined that claimant did not meet the criteria contained in Department of Correctional Services Policy 1.49 (Exhibit 6) for “lower bunk placement,” specifically citing that claimant did not meet the factors of weight, height, seizures, diabetes or lower back pain.

Approximately one month later, July 6, 2004, claimant again sought medical authorization for a bottom bunk permit, this time seeing Robin Rock, a Clinton RN with between 25-30 years of experience. Although claimant testified to having seen a “Dr. Snyder” and having been issued a bottom bunk permit by Dr. Snyder on that date, the Court, based upon the testimony of the only two witnesses, claimant and Nurse Quain, and upon documentary evidence, finds as a matter of fact that it was nurse Rock who examined claimant on July 6, 2004. Further, on that date, nurse Rock issued claimant a bottom bunk permit. In any event, the identity of the treating individual on July 6, 2004, under the facts and circumstances of this case, is immaterial to assess the merits of the claim.

Under a heading of “Professional Malpractice” in his claim, claimant seeks damages for the pain and suffering allegedly endured in his wrists from June 7, 2004 to July 6, 2004, the period of time between nurse Quain’s denial of bottom bunk permit privileges to claimant and nurse Rock’s granting of such privileges to claimant, and the period of time claimant was thereby required to maintain a top bunk assignment.

The claim sounds in medical malpractice. In Bleiler v Bodnar (65 NY2d 65, 71-72 [1985]), the Court of Appeals explained that:
“While courts have in the past held that a nurse could be liable for negligence, but not for malpractice . . . ‘the role of the registered nurse has changed, in the last few decades, from that of a passive, servile employee to that of an assertive, decisive health care provider. Today, the professional nurse monitors complex physiological data, operates sophisticated lifesaving equipment, and coordinates the delivery of a myriad of patient services. As a result, the reasonably prudent nurse no longer waits for and blindly follows physicians’ orders’ (1 Louisell & Williams, Medical Malpractice, ¶ 16A.01, at 16A-2). Accordingly, in Bamert v Central Gen. Hosp., (53 NY2d 656, affg 77 AD2d 559), we held that ‘a nurse is legally capable of committing malpractice’ . . . Obviously, not every negligent act of a nurse would be medical malpractice, but a negligent act or omission by a nurse that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice.”
Defendant is required to exercise professional medical judgment within the range of accepted medical standards in its treatment of claimant. The law is clear that “neither a medical provider . . . nor the State or governmental subdivisions employing the medical provider, may be held liable for a mere error in professional judgment” (Ibguy v State of New York, 261 AD2d 510, [2d Dept 1999], lv denied 93 NY2d 816 [1999]; Sciarabba v State of New York, 182 AD2d 892, 893-894 [3d Dept 1992]).

Conclusory allegations of medical malpractice, unsupported by competent evidence establishing its essential elements, are insufficient to state a prima facie case. Through a medical expert, it must be shown that defendant deviated from the standard for good and acceptable care in the locality where the treatment occurred and that the deviation was the proximate cause of the injury (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]; Yamin v Baghel, 284 AD2d 778, 779 [3d Dept 2001]; Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]).

"Where 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" (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]).

The fact that claimant proceeded pro se does not excuse the need for expert medical opinion to demonstrate a deviation from the applicable standard of care (Duffen v State of New York, 245 AD2d 653, 653-654 [3d Dept 1997], lv denied 91 NY2d 810 [1998]).

Claimant and nurse Quain were the only two witnesses at trial, both called by claimant. At the conclusion of claimant’s case, defendant moved to dismiss, citing claimant’s failure to provide expert testimony. The claimant asserted the matter was not one of medical malpractice, but one of a failure of “duty of care.” At trial, the Court reserved on defendant’s motion. The Court now grants defendant’s motion. The claim is dismissed.

Notwithstanding claimant’s assertion to the contrary, the claim is for medical malpractice. The claim made is for injuries allegedly suffered due to a medical examination performed of claimant by nurse Quain, resulting in the improper (and negligent) medical conclusion being drawn that claimant failed to meet the defendant’s “medical criteria” for lower bunk placement contained in Policy 1.49.

Viewed most favorably to claimant, the best that can be said for claimant is that nurse Rock, thirty days after claimant had been seen by nurse Quain, had a different medical opinion concerning claimant’s entitlement to bottom bunk placement.

There was no expert medical testimony that nurse Quain’s medical evaluation or care was deficient or that his conclusion to deny claimant bottom bunk placement was wrong. Moreover, there was no testimony whatsoever, medical or otherwise, describing the claimant’s medical condition as having been substantially the same or changed in the intervening thirty days between his visits to nurse Quain and nurse Rock, information critically necessary to make any judgments about either the consistency or validity of the differing conclusions, to say nothing of, in the absence of required expert medical testimony, judging whether nurse Quain’s decision to deny the bottom bunk permit on June 7, 2004 was wrong and the product of substandard medical care in light of nurse Rock’s subsequent decision to grant it.

For all of the foregoing reasons the claim is dismissed. All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

January 14, 2008
Albany, New York

Judge of the Court of Claims