PALMER v. THE STATE OF NEW YORK, #2009-030-011, Claim No. 113141
Inmate claimant proceeding pro se did not establish prima facie case in claim
alleging inadequate medical care and treatment and ministerial neglect after
trial. Trial motion to dismiss by defendant granted. Claimant suffers from
chronic (and disfiguring) skin and nail conditions. Without expert medical
testimony to explain the appropriate standard of care an individual presenting
himself to medical personnel with his symptoms should receive, and to further
explain that the care received was substandard, and that as a result of this
substandard care claimant suffered harm, claimant could not establish State
RUSSELL D. PALMER
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
RUSSELL D. PALMER, PRO SE
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
May 4, 2009
See also (multicaptioned
Russell Palmer alleges in his claim that defendant’s agents at Otisville
Correctional Facility and Green Haven Correctional Facility did not provide him
with adequate and timely medical care during his incarceration. Trial of the
matter was held on April 3, 2009 at Sing Sing Correctional Facility.
Mr. Palmer testified essentially as to the facts set forth in his claim. He
stated that on July 24, 2006 at Otisville Correctional Facility he saw medical
personnel complaining of a “fungus to both [his] feet spreading to [his]
hands [and] fingernails.”
He was seen by Dr. Zamilus, who made an appointment for him to be seen by Dr.
Shapiro, a podiatrist. [Exhibit 2]. His right foot was discolored, the
“pinky fingernail” on his right hand was “gray and then fell
off and no longer could grow” and the toenails on his right foot -
“all five - are decayed.” He complained at trial of current pain
including burning in his hands, swelling, skin cracking, and other pain
depending on the weather.
When he saw Dr. Shapiro on September 14, 2006, he said he was diagnosed as
having “chronic onychomycosis and chronic keratoderma” and he was
prescribed the medication Clotrimazole. A request and report of consultation
form confirms the visit, if not any diagnosis since the handwriting is mostly
illegible. [See Exhibit 3]. Claimant said he was advised that Dr. Shapiro
could assist with the “onychomycosis” condition (“the
fingernail and toenail infections”), but could not with the
“keratoderma” (“the dryness and cracking of the hands”).
When claimant obtained the medication for the fingernails and read the
literature, it stated: “do not apply on affected toenail.”
Concluding that he had been provided with incorrect medication, claimant grieved
Dr. Zamilus and Dr. Shapiro, saying he had been given improper medication and
needed to see a dermatologist to receive the proper help. [Exhibit 4]. Claimant
testified that the grievance result provided he should ask for a sick call to
see a dermatologist, since a podiatrist handles only foot problems.
On September 22, 2006 he went to sick call, and spoke to Nurse Adye, who
suggested that he “take Lasmil.” Claimant indicated he would not
take it because he knew that it had the potential side effect of “messing
your liver up or your kidneys even when prescribed by a doctor.” He told
the nurse she was not a doctor, and asked to see one. According to
claimant’s ambulatory health record [AHR], an appointment was made.
On September 29, 2006 he saw Dr. Sharrack. Learning that he might “lose
nails or digits” on his hands, he “got scared” and did not
want to “lose any limbs.” The visit is reflected on the AHR for that
day, and notes a referral for a dermatology consultation. [Exhibit 7].
A standard contract for such consultation, signed by both claimant and a
medical care provider (the signature is not clear) on September 29, 2006
references the referral as well, and provides that the referral is to be
submitted for evaluation as to “medical necessity” and provides for
claimant’s cooperation in keeping appointments. [Exhibit 6]. Dr. Sharrack
notes on the AHR for September 29, 2006 that claimant has “dry scaly
skin” on both hands, and “chronic onychomycosis on fingernails
[with] nail loss [of] 5th digit [right] hand.” [Exhibit 7]. Claimant
“it was like they were playing games with me. When I said
‘listen, Dr. Shapiro gave me the wrong medicine’ Dr. Sharrack did
not want to discuss it. One doctor wanted to take care of the keratoderma (Dr.
Sharrack), and the other wanted to take care of the onychomycosis (Dr. Shapiro).
Dr. Sharrack, who was supposed to take care of both the onychomycosis and the
keratoderma, just talked about the onychomycosis a little bit, but then left
that alone, because I was complaining about the wrong medicine.”
Dr. Norisignfeild, “a dermatologist at Fishkill Correctional
Facility,” saw claimant either on October 13 or October, 16, 2006.
[Exhibits 8 and 9]. A biopsy was performed by removal of some skin from his
right hand. [Exhibit 9]. Medications were suggested by Dr. Norisignfeild.
[Id.]. A follow-up visit was recommended in two weeks according to the
report of consultation. [Id.].
On the form requesting the dermatology consultation - which also contains the
report of same - in the request portion the reason for the request is written
as “dry scaly skin and cracked both hands non responsive to emollients,
lotions ? exzema (sic)” and is dated September 29, 2006. [Exhibit
9]. The dermatologist then writes, apparently on October 13, 2006:
“possible punctate kertoderma” (sic) notes the biopsy and the
medication prescribed. [Id.].
The Court notes that before September 29, 2006 there are no notations in the
medical records submitted concerning “onychomycosis” [see
Exhibit 7], and “keratoderma” [Exhibit 9]. It is also noted that in
the AHR records submitted, claimant appears to have consulted medical personnel
regularly for other medical conditions as well, including earaches and
infections, and pain in his neck. [See Exhibits 1, 5, 7].
Because of the biopsy, Mr. Palmer said he had a “hole” in his hand
and “was bleeding.” Mr. Palmer said he saw nurse Hamburger, who
“gave [him] a bandage, wrapped it up and said ‘Listen, come back
tomorrow and we’ll have your meds for you.’ ” Claimant said he
went to try to retrieve his medication “three days in a row,” but
they did not have it. He then “grieved them” for the lapse. [Exhibit
11]. His hand continued to bleed and he tried to stop it himself “with
toothpaste.” Indeed, after he was in school one day one of the correction
officers called the medical unit to intercede because he was bleeding. Mr.
Palmer again went to seek help at the clinic. He saw Nurse Delgado, who checked
the files and ascertained that the medication “had been there for two
days.” She got it for him, and showed him how to apply it to his wound,
and the wound healed “within a day and a half.”
In response to the grievance he filed saying that he was being denied
medication, apparently filed on October 19, 2006 and returned to claimant on
October 30, 2006, the Inmate Grievance Resolution Committee [IGRC] wrote that
the matters were not within the purview of the committee, in that they were not
in a position to make determinations about his medical concerns. [Exhibits 11
and 12]. The IGRC suggested that claimant sign up for sick call, and that he
write to “Lester Wright concerning his continuing medical issues.”
[Exhibit 12]. Claimant testified that “Lester Wright is the medical
director from somewhere else in Albany somewhere, like he was going to do
something about it; he didn’t do anything.”
The superintendent’s appeal of the IGRC determination provided,
essentially, that the general concept that inmates not be denied medical
treatment was “accepted”, but that as to the particulars of
claimant’s case, he had a
“chronic medical condition and is receiving proper treatment/medication
for it. Neither the consulting physician nor the FHSD, indicated that there was
a medical need for grievant to receive his medication immediately, or ASAP.
Grievant received his medication and was instructed in its use on 10/18/06.
This matter is moot.” [Exhibit 13].
The determination on his further appeal by the State Central Office Review
Committee [CORC], dated November 29, 2006, found that there was not
“sufficient evidence to substantiate any malfeasance by staff,” and
further found that Mr. Palmer was again seen by a dermatologist on October 26,
2006 in a follow-up appointment, and an additional appointment was scheduled.
[Exhibit 14]. The CORC wrote that claimant “is receiving appropriate care
and CORC advises the grievant to address medical concerns via the sick call
Apparently simultaneously with the grievance about not receiving his medication
on time, he filed grievances about obtaining a further consultation with a
podiatrist, complaining he was receiving only dermatological consultations,
wherein he was advised that nothing could be done about his foot issues.
[See Exhibits 17 and 18]. These grievances appear to have been
consolidated with the grievance concerning prompt receipt of medication
(although that is not precisely clear), in that they were assigned the same
number and noted as received at the State level by the CORC on December 11,
2006. [Exhibit 21]. This specific grievance complaint was entitled “Wants
Test Results/Treatment” - as it is noted on the CORC determination - and
was decided on December 27, 2006. [Exhibit 15]. The CORC wrote:
“. . . the action requested herein is hereby accepted only to the extent
CORC upholds the determination of the
for the reasons stated. CORC
notes that the grievant saw the dermatologist on 12/7/06 and four different
medications were recommended. The FHSD reviewed the consult and ordered . . .
[various] creams.” [Exhibit 15].
Claimant testified further that he was treated only for the skin condition
rather than the onychomycosis - “it was like they forgot all about
it” - although the testimony was not clear on this point. Further
grievances were filed [Exhibits 17, 18] - some were apparently consolidated by
the State CORC [Exhibit 16, 21] - and ultimately with regard to all the
grievances the State determined that the claimant was receiving what he needed,
that the facilities had no control over when the biopsy results were received,
and that he was being followed appropriately for his medical conditions.
[Exhibits 13, 14, 15, 22].
No other witnesses testified, and no other relevant evidence was
It is “fundamental law that the State has a duty to provide reasonable
and adequate medical care to the inmates of its prisons,” including proper
diagnosis and treatment. Rivers v State of New York, 159 AD2d 788, 789
(3d Dept 1990), lv denied 76 NY2d 701 (1990).
In a medical malpractice claim, the claimant has the burden of proof and must
prove (1) a deviation or departure from accepted practice and (2) evidence that
such deviation was the proximate cause of the injury or other damage. A cause
of action is premised in medical malpractice when it is the medical treatment,
or the lack of it, that is in issue. A claimant must establish that the medical
caregiver either did not possess or did not use reasonable care or best judgment
in applying the knowledge and skill ordinarily possessed by practitioners in the
field. The “ ‘claimant must [demonstrate] that the physician
deviated from accepted medical practice and that the alleged deviation
proximately caused his . . . injuries’ (Parker v State of New York
, 242 AD2d 785, 786).” Auger v State of New York, 263 AD2d 929,
931 (3d Dept 1999). Without such medical proof, no viable claim giving rise to
liability on the part of the State can be sustained. Hale v State of New
York, 53 AD2d 1025 (4th Dept 1976), lv denied 40 NY2d 804 (1976). A
medical expert’s testimony is necessary to establish, at a minimum, the
standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).
If a claim can be read to allege simple negligence, or medical negligence, then
the alleged negligent omissions or acts by the State’s employees can be
readily determined by a fact finder using common knowledge without the necessity
of expert testimony. Coursen v New York Hospital-Cornell Med. Center,
114 AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for
ministerial neglect if its employees fail to comply with an institution’s
own administrative procedures and protocols for dispensing medical care to
inmates. Kagan v State of New York, 221 AD2d 7,10 (2d Dept 1996).
In this case, only the testimony of the claimant has been presented in support
of any claim of malpractice. No competent medical evidence was presented,
through a treating physician or an expert witness whose opinion was based upon
the available medical records, to support the allegation of medical malpractice.
There is no expert medical evidence on any medical issue and thus no proof that
accepted standards of care were not met. Accordingly, the claim of medical
malpractice must be dismissed.
Additionally, from this record there is no indication that the actions of
medical caregivers amounted to simple negligence or ministerial neglect.
Coursen v New York Hospital-Cornell Med. Center, supra; Kagan v
State of New York, supra. To the extent the claim can be read to
assert such theories, any cause of action for negligence or ministerial neglect
is also dismissed.
While the court is sympathetic to the claimant’s discomfort, and to the
obvious embarrassment his troubling conditions cause him to suffer, the claim he
has presented concerns medical treatment, and the follow-up to medical
treatment. As such, without expert medical testimony to explain the appropriate
standard of care an individual presenting himself to medical personnel with
claimant’s symptoms should receive, and to further explain that the care
received was substandard, and that as a result of this substandard care claimant
suffered harm, claimant cannot present a prima facie case establishing
the State’s liability.
Based on the foregoing, the defendant’s motion to dismiss for failure to
establish a prima facie case, upon which decision was reserved at the
time of trial, is hereby granted, and Claim Number 113141 is dismissed in its
Let judgment be entered accordingly.
May 4, 2009
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
. All quotations are to trial notes or audio
recordings unless otherwise indicated.
. Apparently Exhibit 22 is the
Superintendent’s determination concerning this grievance. It provides:
“Remedy requested is accepted to the extent that grievant’s test
results have been received and he has been scheduled to see the dermatologist
again. Facility staff have no control over when biopsy results are received.
Grievant [has] a chronic condition and he has been consistently followed/treated