New York State Court of Claims

New York State Court of Claims

HARRIS v. THE STATE OF NEW YORK, #2009-010-020, Claim No. 114160


Synopsis


Inmate claim for negligent medical treatment dismissed. Treatment given was within good and accepted standards of care.

Case Information

UID:
2009-010-020
Claimant(s):
RUSSELL HARRIS
Claimant short name:
HARRIS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114160
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
RUSSELL HARRISPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 25, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks damages for injuries resulting from alleged negligent medical treatment that he received during his incarceration at Sing Sing Correctional Facility (Sing Sing). Claimant maintains that the facility waited too long to address his broken finger and, had they treated him promptly, he would have healed sooner.


Claimant testified that on November 2, 2005, he broke his right middle finger playing football. He went to the facility hospital and his hand was wrapped. According to claimant, a week later he was seen by Physician’s Assistant (PA) Williams and three months after that, a specialist performed an operation on claimant’s finger. Claimant testified that he has no complaints about the treatment he received from PA Williams or the performance of the operation.

Philip Williams testified that he is a registered PA and has been employed by Sing Sing for 26 years. Williams stated that claimant was initially seen by a nurse who immobilized claimant’s finger with a splint and dispensed analgesics to him. The following day, claimant saw a nurse at sick call, who referred claimant to Williams. On November 7, 2005, Williams saw claimant and took x-rays, which revealed a fracture of the right distal phalanx. Claimant was then referred to a hand surgeon. Ten days later, claimant saw Dr. Magill, a hand specialist. Magill recommended a stack splint to immobilize claimant’s finger as claimant had removed the original splint and its removal impeded the healing process.

On December 15, 2005, claimant returned to Dr. Magill, who recommended surgery. Pinning was necessary because the bones had failed to heal on their own. The surgery was performed in February 2006 and the pins were subsequently removed on March 22, 2006. Thereafter, claimant was engaged in a six-week course of physical therapy. Claimant returned to Magill on May 4, 2006, at which time claimant was assessed as healed.

Williams testified that claimant received the appropriate treatment and obtained a good result. Williams explained that the normal practice is to see if a fractured bone will heal on its own and then, if necessary, to proceed with surgery. According to Williams, there was no delay. Claimant was seen by a hand surgeon within 10 days and a standard course of treatment followed.

Preliminarily, although no motion was made by defendant, in its answer the defendant appropriately raised the affirmative defense of lack of jurisdiction based upon claimant’s untimely service of the notice of intention. As noted by the Court in denying claimant’s motion to strike this affirmative defense (M-74427), the claim warrants dismissal based upon the jurisdictional defect (see Jackson v State of New York, 85 AD2d 818 [notice of intention was mailed one day prior to the expiration of the 90-day time period; however service was untimely because it was not complete until receipt and that occurred two days after the statutory time period had lapsed]; see also Kolnacki v State of New York, 8 NY3d 277, 281 [“(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect”]; Welch v State of New York, 286 AD2d 496, 497-98). Moreover, the claim warrants dismissal due to claimant’s failure to establish a prima facie case at trial.

To prove that the State failed in its duty and committed medical malpractice, claimant must establish by a preponderance of the evidence that the State departed from good and accepted standards of care and that such departure was a substantial factor or proximate cause of the alleged injury (see Mullally v State of New York, 289 AD2d 308; Kaminsky v State of New York, 265 AD2d 306). Claimant must also prove, inter alia, that his “injuries proximately resulted from the defendant’s departure from the required standard of performance” (Tonetti v Peekskill Community Hosp., 148 AD2d 525). Significantly, claimant failed to present any competent medical evidence, either from a treating physician or from an expert whose opinion was based upon claimant’s medical records, to support the allegations of medical malpractice. “Moreover, even assuming improper delay in providing treatment, it was incumbent upon claimant to show by competent expert evidence that the delay was a cause of [the] alleged ensuing medical problems” (Trottie v State of New York, 39 AD3d 1094; see also Naughton v Arden Hill Hosp., 215 AD2d 810 [even assuming defendant committed malpractice in its failure to diagnose and admit patient to hospital, there was no proof of proximate cause, i.e., that, had the patient been admitted, the risk of a heart attack would have been prevented or lessened]; Brown v State of New York, 192 AD2d 936 [no proof that delay in treatment contributed to the loss of claimant’s larynx]).

ACCORDINGLY, LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 114160.


June 25, 2009
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims