In this claim, claimant seeks damages for personal injuries due to the alleged
failure of the State to provide him with timely and proper medical treatment for
a broken finger suffered by him on July 25, 2002. The trial of this claim was
bifurcated, and this decision therefore solely addresses the issue of liability.
Claimant testified that on July 25, 2002, he was incarcerated under the care
and custody of the New York State Department of Correctional Services (DOCS) at
Auburn Correctional Facility (Auburn), when he was involved in an altercation
with another inmate. During this fight, claimant broke his right middle finger.
Claimant acknowledged that he was examined by a nurse at the facility
immediately after this fight. Claimant testified, however, that he then
continually requested further medical assistance, but did not receive any
medical attention until August 8, 2002, when he was examined by a DOCS
physician, who reviewed an x-ray and concluded that claimant had fractured his
right middle finger. Claimant was then transported to the Emergency Department
at University Hospital in Syracuse where he was re-examined and had his finger
immobilized by a cast. Claimant further testified that after he returned to
Auburn, he was involved in a subsequent fight with another inmate on August 13,
2002. He testified at trial, however, that he did not re-injure his finger in
this fight. The next day, August 14, 2002, claimant was transferred to the SUNY
Hand Clinic at University Hospital, where he was examined by an orthopedic
surgeon. Claimant testified that during this examination, the surgeon
recommended that he have surgery on his finger within two to three weeks.
Claimant testified that upon his return to Auburn following this examination ,
he was denied pain medication by the nursing staff at Auburn and that he then
filed numerous grievances against certain members of that staff. Claimant also
testified that he was placed on a restricted diet, in the form of a bread-like
loaf which contained milk, even though the medical staff at the facility were
aware that claimant was allergic to milk and milk products.
Claimant testified that even though surgery was recommended in mid-August,
2002, the surgery was never performed, and he was eventually released from
custody on November 4, 2002 without any further treatment for his injury.
Claimant testified that upon his release, he sought his own medical treatment
and had the cast removed, but that no surgery has been performed since he was
released from custody.
Virginia F. Androsko, a nurse at Auburn, was also called as a witness by
claimant. She testified that she was assigned to the Special Housing Unit (SHU)
at Auburn at the time that claimant was housed there following the fight on July
25, 2002 when he broke his finger. Ms. Androsko testified that she had
difficulties with claimant on several occasions while attempting to provide
medical treatment, including verbal abuse and claimant’s refusal to submit
to examinations. She testified that she filed a misbehavior report against
claimant, and that claimant was found guilty of violating DOCS disciplinary
rules. As part of his administrative penalty, claimant was placed on a
restricted diet. She testified that claimant also refused a “RAST”
test, which would have determined whether claimant had an allergy to the
restricted diet as he claimed.
Susan Lennox, a registered nurse at Auburn Correctional Facility, was called as
a witness by the defendant. Ms. Lennox testified as to the procedures that
nurses follow in making their daily rounds of SHU inmates. She testified that
nurses are escorted by a correction officer, and that they do not examine
inmates in their cells. In order to participate in sick-call, an inmate must be
up and dressed. If not, the nurse can defer the sick-call. Ms. Lennox
testified that she had seen claimant as one of her patients during the time that
claimant was incarcerated at Auburn.
Ms. Lennox also testified as to the procedures to be followed for those inmates
who were scheduled for surgery at another facility. She testified that an
inmate would be brought to the facility infirmary the day before transfer for
outside surgery, to insure that the inmate did not eat or drink after midnight.
She also testified that for security reasons, inmates were not told in advance
of the date for the scheduled surgery.
In this particular matter, Ms. Lennox reviewed claimant’s Ambulatory
Health Record (Exhibit A) and testified that these records established that
claimant had refused transfer to the infirmary for “Pre Op Prep” on
October 31, 2002, and that he refused admission to the infirmary on that date.
She testified that “Pre Op Prep” meant that claimant had been
scheduled for surgery, and that he was to be transferred to the infirmary for
standard preparation. She also testified that if an inmate refused a transfer
for this “Pre Op Prep”, the surgery would be canceled. There is a
notation in claimant’s Ambulatory Health Record that “Upstate &
Ortho Clinic & Security [were] notified of refusal”.
Raymond Head, a Disciplinary Lieutenant at Auburn Correctional Facility, also
testified on behalf of the defendant. Lieutenant Head confirmed the testimony
of Nurse Lennox as to the procedures that nurses follow in making their calls in
the SHU, and confirmed that inmates had to be up and appropriately dressed in
order to participate in sick-call. He also confirmed that a nurse making the
rounds had discretion to defer a sick-call if an inmate had not complied with
these rules. Lieutenant Head also confirmed Ms. Lennox’s testimony that
an inmate would be brought to the prison infirmary the day before any surgery
was to be performed, to insure that the inmate was monitored in a
he would not eat or drink prior to the surgery.
Lieutenant Head had also testified that claimant was considered a high profile
prisoner, due to his actions at other correctional facilities where he was
previously incarcerated, and that he was under “CMCA”, or
“controlled monitoring” status.
The testimony of Timothy McGrath, M.D., an Orthopedic Surgeon, was taken prior
to trial, due to Dr. McGrath’s apparent unavailability to testify on the
scheduled trial date
. It was established that
after his release from custody, claimant was referred by the Niagara Falls
Medical Center to the Erie County Medical Center Hand Clinic, where he was
examined by Dr. McGrath on April 24, 2006. Dr. McGrath was called to testify
regarding this examination.
Defendant has objected to the Court’s consideration of this testimony,
arguing that there was no disclosure of Dr. McGrath as an expert prior to
trial. Additionally, if Dr. McGrath is considered to be a treating physician,
defendant contends that any expert medical opinions from Dr. McGrath should
not be allowed.
Initially, it is noted that at the time this matter was scheduled for trial,
this Court issued an Order dated July 16, 2007, directing, inter alia,
claimant to disclose his expert witnesses, if any, at least 60 days prior to
trial. Claimant concedes that no such expert disclosure was made pursuant to
this Order. Claimant contends that Dr. McGrath testified not as an expert, but
as claimant’s treating physician, and therefore no such disclosure was
In order to prevent unfair advantage or surprise, this Court has uniformly
required strict compliance with its orders directing the disclosure of expert
witnesses prior to trial (Meyer v State of New York
, Ct Cl, March 31,
2008, Midey, J., Claim No. 99381, Motion No. M-71570,
. In this particular
matter, it initially appears that Dr. McGrath should be considered an expert,
since claimant was only examined one time and apparently never returned to Dr.
McGrath for any treatment or follow-up care. Nevertheless, the Court accepts
the representations made by claimant’s attorney that Dr. McGrath was never
retained as an expert and that Dr. McGrath did not receive any payment for his
testimony. Furthermore, claimant apparently was examined by Dr. McGrath for
possible medical treatment after he was referred from the Niagara Falls Medical
Center to the Erie County Medical Center Hand Clinic. Based on this
information, the Court finds and concludes that Dr. McGrath must be viewed as a
treating physician, and not a medical expert subject to the time frame for
disclosure set forth in this Court’s Order of July 16, 2007. A treating
physician may give expert testimony, even without prior notice and disclosure as
required by CPLR § 3101(d) (Andrew v Hurh
, 34 AD3d 1331).
This determination, however, does not resolve the admissibility of Dr.
McGrath’s testimony. It has also been established that claimant never
identified Dr. McGrath as a treating physician at any time during the
discovery process. As noted above, claimant was examined by Dr. McGrath for the
one and only time on April 24, 2006. The Note of Issue and Certificate of
Readiness, attesting that all discovery was complete, was served and filed with
the Court of Claims almost one year later, on March 16, 2007. Following the
service and filing of claimant’s Note of Issue, the case was then
calendered for the July 16, 2007 conference for purposes of scheduling a trial.
At this conference, a trial was scheduled to commence on January 29, 2008. The
trial date (and incidentally, the dates for disclosure of expert witnesses) was
confirmed in the aforementioned Order of this Court dated July 16, 2007.
During all this time and despite several opportunities to do so, neither the
identity of Dr. McGrath, nor claimant’s intent to call him as a
witness, was disclosed to the defendant, although these facts were obviously
known to claimant and presumably to his attorney. According to
defendant’s attorney, he first learned that claimant intended to present
testimony from Dr. McGrath on January 8, 2008, just three weeks before the
scheduled commencement of trial on January 29, 2008. Additionally,
defendant’s attorney states that Dr. McGrath’s medical records were
not provided until the following day, January 9, 2008. Furthermore, and as
previously mentioned herein, Dr. McGrath apparently was unavailable to testify
at trial, and claimant’s attorney proposed to have his testimony taken by
videotaped deposition on January 11, 2008, less than three days after the
identity of this physician was revealed to defendant’s attorney for the
In sum, defendant was completely unaware that claimant intended to present any
medical testimony whatsoever from Dr. McGrath, whether as a treating physician
or medical expert, until three days before that testimony was to be taken. On
its face, such a delay is highly prejudicial to the defendant by impairing its
ability to cross-examine Dr. McGrath, as well as severely limiting
defendant’s ability to secure its own medical expert on such short notice
prior to trial.
Furthermore, claimant’s attorney has not provided any suitable
explanation or good cause for the failure to timely disclose Dr. McGrath as
either a treating physician or expert medical witness. Claimant’s
attorney has simply stated that he was not required to disclose Dr. McGrath as
an expert; the defendant would not be prejudiced by Dr. McGrath’s
testimony; and that defendant had ample time to review the medical records and
prepare for Dr. McGrath’s testimony. As stated above, this Court finds
otherwise, in that defendant has been highly prejudiced by claimant’s
failure to timely disclose. It is significant that claimant’s attorney
has made no representation that he was unaware of Dr. McGrath’s
identity or the substance of his expected testimony until the time that he
disclosed Dr. McGrath to defendant. This Court must conclude that claimant
intentionally failed to respond to defendant’s demand for the names of any
treating physicians, and failed to supplement his discovery responses and his
bill of particulars at any time prior to his service and filing of the Note of
Issue and Certificate of Readiness, or even after such service and filing, until
the eve of trial. The Court therefore finds that claimant’s failure to
timely disclose Dr. McGrath, either as a medical expert or as a treating
physician, was a deliberate attempt to circumvent the expert disclosure
requirements of CPLR § 3101(d), this Court’s Order directing expert
disclosure, and the discovery process. The Court finds that claimant
deliberately withheld the identity of Dr. McGrath until such time that the
defendant would be unable to prepare an adequate response. Claimant, without
any reasonable explanation, has at best engaged in conduct that frustrates the
discovery process, and, at worst, intentionally and deliberately ignored
Court-ordered discovery deadlines and deadlines for the disclosure of medical
expert information, all in an attempt to gain an unfair advantage over the
defendant. Such conduct will not be tolerated by this Court. Therefore,
although preclusion of testimony is a drastic remedy, the Court finds that
claimant has engaged in willful, deliberate and contumacious conduct which
clearly warrants the preclusion of Dr. McGrath’s testimony in the instant
case (Saggese v Madison Mut. Ins. Co., 294 AD2d 900).
This claim is one essentially based upon allegations of negligence and medical
malpractice. Claimant alleges that the defendant breached its duty of providing
him with reasonable medical care when it failed to provide him with timely and
adequate medical treatment for the broken finger he suffered in the fight of
July 25, 2002. Specifically, claimant alleges that he was denied medical
attention and appropriate pain medication on numerous occasions following the
incident, and that the defendant denied him timely surgery to correct his
fractured finger, resulting in constant pain and permanent loss of use of that
finger. Claimant has also alleged a cause of action asserting a violation of
his rights under the Eighth Amendment of the United States Constitution,
alleging a pattern of neglect and deliberate indifference to his medical needs.
There is no dispute that the State has an obligation to provide the inmates of
its correctional facilities with reasonable and adequate medical care (Gordon
v City of New York, 120 AD2d 562, affd 70 NY2d 839), including proper
diagnosis and treatment of injuries (Rivers v State of New York, 159 AD2d
788, lv denied 76 NY2d 701).
In a claim based upon medical malpractice, a claimant has the burden of proof
and must establish (1) a deviation or departure from accepted practice and
(2) evidence that the deviation was the proximate cause of the injury
involved (Pike v Honsinger, 155 NY 201). The theory of medical
negligence, on the other hand, is relegated to those cases where the alleged
negligent acts are readily determinable by the trier of fact based upon common
knowledge (Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254).
In this particular matter, liability hinges on whether appropriate and timely
medical attention was provided during the course of claimant’s treatment
by DOCS personnel from the date of the incident (July 25, 2002) until
claimant’s release from custody (November 4, 2002).
With respect to that aspect of the claim in which claimant contends that he was
denied immediate medical treatment, his ambulatory health record (AHR)
establishes, without contradiction, that claimant was seen by a nurse on the
date of the fight (July 25, 2002) as well as on each of the two next succeeding
days. Claimant was also seen by a facility nurse on July 30, 2002, August 1,
2002, and August 2, 2002, and then was examined by a DOCS physician on August 8,
2002, who referred claimant to Upstate for treatment and casting. The trial
testimony and claimant’s AHR also establish, without contradiction, that
claimant was examined at the Upstate Hand Clinic on August 14, 2002. Based on
these records, the Court finds that claimant was provided with immediate and
continuing medical treatment following his injury.
Claimant also alleges that on numerous occasions, he was denied pain medication
and medical attention by DOCS nurses and/or medical personnel. However, the
testimony of Nurse Androsko and Nurse Lennox, substantiated by entries
documented in claimant’s AHR, establish to the satisfaction of the Court
that any denials of medication and/or medical attention resulted solely from
claimant’s verbal abuse of facility personnel or his refusal to follow
proper directives. Additionally, testimony established that Nurse Androsko, in
fact, filed a grievance against claimant for such behavior, resulting in a
misbehavior report against claimant being issued and sustained during this time
Based on the foregoing, the Court finds that any allegations of damages based
upon a denial of pain medication and/or medical attention have not been
The crux of this claim, however, is that defendant failed to provide claimant
with corrective surgery (specifically, volar plate arthroscopy) to correct the
fracture of his middle right finger. Furthermore, if this Court finds that the
surgery was scheduled, claimant contends that the delay in scheduling made it
too late to be of any beneficial use in correcting the injury.
Claimant testified that when he was examined at the Upstate Hand Clinic, he was
advised by the examining physician that surgery should take place between three
and five weeks. It is claimant’s contention that this surgery was never
scheduled, and that he was released on November 4, 2002 without having such
Claimant has produced records from Upstate that he claims establish that the
surgery was never scheduled (Exhibit 61). Although it is indicated on the
“certification” page of these medical records that “there was
no surgery scheduled for this patient in 2002 at University Hospital”,
there was no testimony at trial to substantiate this notation.
On the other hand, there was direct testimony from Nurse Lennox, who testified
that claimant was scheduled for transport to Upstate for the corrective
surgery on November 1, 2002, but that the surgery was canceled when claimant
refused to be admitted to the infirmary at Auburn for Pre Op Prep. As
previously indicated and as set forth in her testimony, an inmate must spend one
night in the infirmary immediately prior to surgery, so that the facility staff
can monitor and restrict his fluid and food intake.
In this particular case, claimant’s AHR for October 31, 2002 (Exhibit 52)
confirms that claimant refused to be admitted to the infirmary for Pre Op Prep,
and his AHR also contains a notation that both Upstate and the Ortho Clinic were
notified of claimant’s refusal.
Additionally, a document entitled “Refusal of Medical Examination and/or
Treatment” (Exhibit 51, Exhibit D) was presented at trial, making specific
reference to claimant’s refusal to be admitted to the infirmary on October
31, 2002, and further referencing claimant’s refusal to have his
“scheduled surgery” performed on November 1, 2002. This document
was not signed by claimant, but it was witnessed by one Sergeant Murley, and
the document contained the signature of a second witness, which, as noted
therein, is required when a patient refuses to sign.
Even though it was not signed by claimant, this Court finds that this document
(with two witnesses attesting to claimant’s refusal to sign), together
with testimony of Nurse Lennox, establishes that surgery was in fact scheduled
for November 1, 2002 at Upstate. This Court further finds that this surgery was
then refused by claimant, when he would not consent to being admitted to the
infirmary at Auburn on the day prior to the scheduled surgery.
Although claimant insists that this surgery was never scheduled, he further
contends that the surgery, even if performed on November 1, 2002, would have
been too late to restore beneficial use of this finger. An assessment of this
contention inherently requires the expertise of a physician, and as previously
determined herein, the testimony of Dr. McGrath (who examined claimant in April,
2006) was not allowed. Even if Dr. McGrath’s testimony had been allowed,
any such testimony would have had to have been considered in light of this
Court’s finding that the surgery had been scheduled but was refused by
claimant. In other words, this Court is of the opinion that the hand specialist
who scheduled this surgery must have believed that it was both a timely and
appropriate procedure based upon claimant’s condition at that time.
Therefore, based primarily upon claimant’s refusal to undergo this
surgery on November 1, 2002, as well as the lack of any admissible expert
medical proof to establish that the surgery, if performed at that time, would
have been untimely, this cause of action for medical malpractice must be
Finally, as noted previously, claimant also asserted a cause of action based
upon a violation of his rights under the Eighth Amendment of the U.S.
Constitution. Contrary to claimant’s assertions, State agencies such as
the Department of Correctional Services do not have an independent legal
existence. When a claim is based upon the alleged wrongful conduct of a State
agency or employee, the proper defendant is the State of New York, the only
entity over which this Court has jurisdiction
It is well settled that under 42 USC § 1983, a state is not a
“person” within the meaning of this statute and therefore cannot be
liable for a violation of Federal civil rights under this statute (Will v
Michigan Department of State Police
, 491 US 58; Davis v State of New
, 124 AD2d 420). As a result, claimant’s cause of action based
upon a deliberate indifference to his medical needs in violation of his Eighth
Amendment rights must also fail.
Based upon all of the foregoing, the Court finds that claimant has failed to
establish his claim based upon medical negligence and/or medical malpractice, by
a preponderance of the evidence. Accordingly, this claim must be, and hereby
is, dismissed in its entirety.
All motions not heretofore ruled upon are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.