Claimant seeks damages for the alleged inadequate medical treatment he
received during his incarceration at Sing Sing Correctional Facility (Sing
Claimant testified that on February 29, 2008, he saw Dr. Maw at the Sing Sing
clinic regarding an ongoing wrist problem. Dr. Maw ordered a steroid injection.
Claimant continued to see Maw on several occasions and was subsequently referred
to a hand specialist, Dr. McGill. McGill recommended surgery. In July 2008,
claimant underwent surgery for a tendon replacement in his right wrist.
Claimant contends that the five-month time period between the initial
examination by Dr. Maw and the subsequent surgical procedure by Dr. McGill was
an undue delay in treatment.
Physician’s Assistant Philip Williams testified on behalf of defendant.
Williams, who has been employed at Sing Sing for 26 years, reviewed
claimant’s medical records. Williams maintained that claimant received
proper and appropriate medical treatment as claimant’s condition was
assessed during the five-month period prior to surgery. Williams noted that
claimant had a prior injury to his hand and a prior surgery. Accordingly,
tendinitis was considered as a cause of claimant’s pain. Claimant was
referred to a hand specialist and, when the ruptured tendon was diagnosed,
surgery was appropriately performed.
It is well settled that the State owes a duty of ordinary care to provide its
charges with adequate medical care (see Mullally v State of New
York, 289 AD2d 308; Kagan v State of New York, 221 AD2d 7, 8). To
prove that the State failed in its duty and committed 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, supra; Kaminsky v State of New York, 265 AD2d 306). A
departure from good and accepted medical practice cannot be inferred from expert
testimony; rather the expert must expressly state, with a degree of medical
certainty, that defendant’s conduct constitutes a deviation from the
requisite standard of care (see Stuart v Ellis Hosp., 198 AD2d
559; Sohn v Sand, 180 AD2d 789; Salzman v Alan S. Rosell, D.D.S.,
P.C., 132 AD2d 807). 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 his allegations of medical
malpractice. Claimant’s own unsubstantiated assertions are insufficient
to establish merit and a prima facie case (see Wells v State of New
York, 228 AD2d 581; Mosberg v Elahi, 176 AD2d 710, affd 80
NY2d 941; Quigley v Jabbur, 124 AD2d 398). “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 his alleged
ensuing medical problems” (Trottie v State of New York, 39 AD3d
1094). The evidence is inconclusive and purely speculative as to whether such
conduct, even if negligent, was a proximate cause of claimant’s condition
(see 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]).
Defendant’s motion to dismiss, upon which decision was reserved, is now
ACCORDINGLY, LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 115804.