New York State Court of Claims

New York State Court of Claims

FARRAR v. THE STATE OF NEW YORK, #2008-041-513, Claim No. 110074, Motion No. M-75280


Claimant awarded $1,750.00 after suffering second degree burn and scarring caused by a hot-pack placed on his shoulder during physical therapy session.

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 General
By: Thomas R. Monjeau, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 5, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Trial of the claim was conducted on August 22, 2008, at Clinton Correctional Facility (Clinton). Prior to trial, claimant made a motion for summary judgment based upon the doctrine of res ipsa loquitur, defendant opposed claimant’s motion and the motion was made returnable on the day of trial. The Court reserved decision on claimant’s summary judgment motion and presided over the trial on August 22, 2008.
During the course of the trial, several substantial issues of fact arose concerning defendant’s treatment of claimant, including how many other prisoners, if any, did defendant’s physical therapist Waleed Ahmed treat while treating claimant on October 12, 2004, the length of time Mr. Ahmed evaluated claimant on October 12, 2004, and, most critically, whether Mr. Ahmed applied a heating pad to claimant’s left shoulder on October 12, 2004. In order to determine the claim, the Court must consider and resolve these disputed issues of fact. Accordingly, the Court now denies claimant’s motion for summary judgment, M-75280.
The claim arises out of the defendant’s treatment of claimant on October 12, 2004 at Clinton for a left shoulder injury, previously sustained. Reporting to Mr. Ahmed that morning for a physical therapy (PT) evaluation and potential treatment, claimant complains that Mr. Ahmed applied a heating pad to his left shoulder which ultimately burned and blistered his left shoulder, leaving him with second degree burns. The defendant denies that any heating pad was applied by Mr. Ahmed to claimant that day.
If the doctrine of res ipsa loquitur is to be invoked, the Court must first resolve the matter of the testimonial credibility of the trial’s only two witnesses, the claimant and the involved physical therapist, Mr. Ahmed. Simply stated, claimant asserts a heating pad applied by Mr. Ahmed to his left shoulder on October 12, 2004 resulted in burning, blistering and ultimately, scarring. That claimant was burned on October 12, 2004 is not in dispute, as ample documentary evidence was received demonstrating that claimant’s left shoulder was treated that day, after complaint of claimant, at approximately 3:55 p.m. by a prison nurse (Exhibit 3), who noted “top left shoulder size of lemon burn area open blister size of dime,” and by further exhibits that demonstrate claimant was treated for a second degree burn (by the application of antibiotic ointment and the changing of dressings to the wound) several times in the following days. The defendant, on the other hand, denies that the burn was the result of any care provided to claimant by Mr. Ahmed, and asserts that no heating pad was applied to claimant’s left shoulder that day by Mr. Ahmed.
Certain specific factual disputes arose. Claimant maintains that as one of either five or six patients being seen by Mr. Ahmed at one time, Mr. Ahmed evaluated him for between five and ten minutes by performing strength tests to both arms and shoulders, then placed a heating pad on his left shoulder for about 30 minutes (while attending to other patients), and then removed the pad. Mr. Ahmed testified it would have been customary to see claimant alone for an initial evaluation (as was the case with claimant’s visit of October 12, 2004), examine and evaluate him for 45 minutes and that any application of a heating pad would have been noted in claimant’s health records, and that no such notation had been made in those records.
Having observed the testimony of both witnesses and their demeanor while doing so, the Court credits the testimony of the claimant. Mr. Farrar’s testimony was clear, consistent, logical, without embellishment, detailed, and naturally reflective of his recollection of events. To the Court’s mind, Mr. Ahmed’s testimony, while not evasive, was not unequivocal and appeared more the product of a review of claimant’s medical records and Mr. Ahmed’s belief that certain events would have transpired consistent with protocol or standard operating procedures, and not his independent recollection of what actually transpired on October 12, 2004
. For example, Mr. Ahmed could not and did not testify to seeing claimant alone, only that upon an initial consultation, it would have been customary to see him alone for an extended period of time. Nor could he recall whether a heating pad was applied to claimant’s shoulder on October 12, 2004, stating only that had it been, that fact would have been noted in claimant’s medical records, and that there was no such notation.
This circumstance is neither inexplicable nor necessarily nefarious. Claimant, seeing Mr. Ahmed one time in his life, ultimately enduring a painful second degree burn, credibly testified with detail and precision. Mr. Ahmed, having to recall an otherwise unmemorable physical therapy visit (not being aware of the burn until after the visit on the morning of October 12, 2004), by one patient out of thousands, on a visit four years earlier, was less precise, more speculative and less persuasive.
Claimant was clear, indicating that between 10:00 a.m. - 11:00 a.m. on October 12, 2004, while being one of several patients of Mr. Ahmed, a heating pad was applied to his left shoulder by Mr. Ahmed and removed by Mr. Ahmed after about 30 minutes, further testifying to some discomfort during its application. Returning to his job in the tailor shop (and attending mess), claimant returned to his cell for the first time that day after the physical therapy session, shortly after 3:00 p.m., at the conclusion of his workday, and put on a heavy coat to attend outdoor recreation. Feeling a pain on the shoulder due to the coat’s heaviness, he removed the coat, a shirt and tee-shirt to discover a burn and an open wound to the top of his left shoulder. Reporting this discovery immediately to an unidentified sergeant, he was brought to the infirmary to see a nurse, who noted the injury (Exhibit 3), at 3:55 p.m. The Exhibit, demonstrating the consistency of claimant’s testimony, notes claimant’s complaint of being burned by a heating pad in physical therapy at about 11:00 a.m. that day.
Claimant was detailed in his testimony, stating that Mr. Ahmed first wrapped the heating pad in a “state towel,” “a little bigger than a wash cloth,” “the size of a hand towel,” put another such towel on top of his tee-shirt (his outer shirt having been removed) and then placed the wrapped heating pad on top of a towel placed on top of his tee-shirt on his left shoulder. In addition to this detail, the Court observed that the claimant declined to embellish the circumstances of the heating pad’s application to his shoulder, never, for example, suggesting it was directly applied to his skin or that it resulted in searing pain, only that he felt “discomfort.” His testimony had the appearance of truthfulness and accuracy.
Further indicative of his disinclination to embellish was his acknowledgment that his claim’s statement that the heating pad was in place for an hour was inaccurate and that, in fact, it was in place for approximately 30 minutes (his “estimation”). Also, in response to questioning about the length of time between the heating pad’s application and the first time he actually looked at his shoulder (about 4 hours later), he responded he was in slight pain and discomfort and that he “couldn’t give you a reason why I never looked at it.”
Claimant’s testimony, in addition to being consistent, was logical. Claimant was asked why he had not received physical therapy from Mr. Ahmed after October 12, 2004, after having testified that Mr. Ahmed had indicated to claimant on October 12, 2004 that he would receive physical therapy (contradicting Mr. Ahmed’s assertion that no physical therapy had been recommended). Claimant responded by introducing Exhibit 5, documents indicating that claimant declined physical therapy treatment on June 14, 2005 and July 7, 2005 because “I refuse because this man injured me last time we met” and “Last time we met I was injured/burned.”
The Court finds as a matter of fact that defendant’s employee, Mr. Ahmed, applied a heating pad to the left shoulder of claimant on October 12, 2004, and that as a result of that application claimant suffered second degree burns and blistering, which ultimately has resulted in permanent scarring to the top of claimant’s left shoulder blade.
The claimant asserts defendant is liable under the doctrine of res ipsa loquitur. Dermatossian v New York City Tr. Auth. (67 NY2d 219, 226) explains the doctrine and its application:
“The doctrine res ipsa loquitur represents an application of the ordinary rules pertaining to circumstantial evidence in negligence cases stemming from accidents having particular characteristics. When the doctrine is invoked, an inference of negligence may be drawn solely from the happening of the accident upon the theory that ‘certain occurrences contain within themselves a sufficient basis for an inference of negligence’(Foltis, Inc. v City of New York, 287 NY 108, 116; see, Richardson, Evidence § 93, at 68 [Prince 10th ed]). The rule simply recognizes what we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence(see, e.g., Dittinger v Isal Realty Corp., 290 NY 492; Griffin v Manice, 166 NY 188). Res ipsa loquitur does not create a presumption in favor of the plaintiff but merely permits the inference of negligence to be drawn from the circumstance of the occurrence (Richardson, Evidence § 93, at 69 [Prince 10th ed]). The rule has the effect of creating a prima facie case of negligence sufficient for submission to the jury, and the jury may--but is not required to--draw the permissible inference(see, Foltis, Inc. v City of New York, supra, at pp 115-120).”
Schlanger v Doe (2008 NY Slip Op 06247 [3d Dept 2008]), sets forth the factors required to be shown for invocation of the rule:
“A plaintiff is entitled to invoke the doctrine of res ipsa loquitur and create an inference of negligence when he or she establishes that (1) the event is of a kind that does not normally occur in the absence of negligence, (2) it was caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the plaintiff did not contribute to the cause by any voluntary act.”
The claimant’s testimony, once credited by the Court, clearly and without contradiction established the elements of res ipsa loquitur.
Res ipsa loquitur may be invoked in a medical malpractice action to establish a prima facie case, although the “the doctrine does not relieve a [claimant] of the burden of proof. It is an evidentiary doctrine that merely permits the [fact-finder] to infer negligence based on a well-founded understanding that the injury-causing event would not normally occur unless someone was negligent and may be rebutted with evidence from defendant that tends to cast doubt on [claimant’s] proof” (States v Lourdes Hosp., 100 NY2d 208, 213-214 [2003]).
Res ipsa loquitur formed the basis of a Court of Claims grant of summary judgment in a medical malpractice claim in Banks v State of New York (Ct Cl, Mignano, J., April 11, 2007, Claim No. 112621, Motion No. M-72799, UID 2007-029-012) which involved facts similar to those presented here. The Banks claimant, an inmate, alleged that he suffered burns on his shoulder during a physical therapy session at Shawangunk Correctional Facility after “treatment [that] involved application of a hot plate wrapped in a towel to his left shoulder.”
The Banks court concluded “that this is one of those rare cases where claimant, relying on res ipsa loquitur, has shown not only the absence of any material issue of fact but also that the inference of negligence is inescapable.”
This Court finds that the instant claim is another of those relatively rare situations where application of the res ipsa loquitur doctrine demonstrates a prima facie case of negligent medical care. Defendant offered no evidence to rebut the inference of negligence, contesting only that the heating pad was ever applied to claimant’s shoulder. Accordingly, given its findings of fact, the Court finds that the defendant was negligent in the medical care it provided to Mr. Farrar.
Claimant testified to being in pain, as a result of the second degree burn, for a period of three weeks, following October 12, 2004, at which point the pain ceased. He further reported no current pain (another example, in the Court’s estimation, of claimant’s unembellished testimony) and receives no present treatment for the scar which resulted. He was unable to shower for two days after October 12, 2004, and reported receiving medical care and treatment for approximately 13 days following October 12, 2004, for the purpose of having topical antibiotic ointment applied and having burn dressings changed.
Claimant is permanently scarred (the darkened skin still apparent four years after the incident) on the top of his left shoulder blade. The scarred area is darkened skin, with a thin pink line running across its middle. The scar, oval in shape, measures ¾” wide and 1½” long. Sitting atop of claimant’s left shoulder blade, it is not openly visible unless claimant is bare-chested.
In consideration of all of the foregoing, claimant is awarded damages in the amount of $1,750.00, plus the amount of his filing fee, if any, in bringing the claim, pursuant to Court of Claims Act § 11-a (2).
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.

September 5, 2008
Albany, New York

Judge of the Court of Claims

Papers considered on M-75280

  1. Notice of Amended Motion, filed August 8, 2008;
  2. Affidavit of John Farrar, sworn June 3, 2008, with annexed exhibits;
  3. Affirmation of Thomas R. Monjeau, dated August 18, 2008.

[1].The Court does note, however, that representations as to Mr. Ahmed’s expected testimony at trial concerning the cause of claimant’s injuries, made by defendant’s attorney in his affirmation opposing claimant’s summary judgment motion (M-75280), were inconsistent with Mr. Ahmed’s actual trial testimony.