New York State Court of Claims

New York State Court of Claims

LUTES v. THE STATE OF NEW YORK, #2009-010-022, Claim No. 115804


Synopsis


Inmate med mal-hand injury. Claimant failed to present medical evidence.

Case Information

UID:
2009-010-022
Claimant(s):
STEVEN LUTES
Claimant short name:
LUTES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115804
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
STEVEN LUTESPro 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:
July 15, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks damages for the alleged inadequate medical treatment he received during his incarceration at Sing Sing Correctional Facility (Sing 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 GRANTED.

ACCORDINGLY, LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 115804.

July 15, 2009
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims