New York State Court of Claims

New York State Court of Claims

PORTER v. THE STATE OF NEW YORK, #2009-009-200, Claim No. 108103


This claim seeking damages for medical negligence and/or malpractice based upon the alleged failure of the State to provide claimant with timely and proper medical treatment for a broken finger was dismissed.

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:
BY: Kyle C. Reeb, Esq., and
Ryan Cummings, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
June 30, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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 “controlled environment”[1] so that 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[2]. 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 required.

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, UID #2008-009-008)[3]. 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 first time.

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 (Exhibit 54).

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 substantiated.

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 surgery.

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 dismissed.

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[4]. 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 York, 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.


June 30, 2009
Syracuse, New York

Judge of the Court of Claims

[1]. Unless otherwise indicated, all references and quotations are taken from the Court’s trial notes.
[2]. See Exhibit 1, Transcript, and Exhibit 2, DVD, of Dr. McGrath’s testimony.
[3]. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at
[4]. The Court of Claims also has jurisdiction to hear claims against certain public authorities, none of which are pertinent herein.