“Dr. Sullivan wrote down that I was to get physical therapy, I did not
receive physical therapy for four or five months.”
When she was afforded physical therapy, she said that she then went twice a
week to Bedford for it. She testified she was released from prison not long
thereafter, but continues to get physical therapy. In terms of injuries from her
fall, she said her right knee was “dislocated,” and she had an
“egg” or “hematoma.” She testified that she had
“pain and suffering and mental anguish.” To this day she indicated
that she suffers pain in her right knee, and must wear a brace or it
“comes out.” The negligence claimed is the failure to provide
immediate medical treatment and to require that she continue working despite her
injury, which “only made it worse.”
Without much direct testimony concerning same, Ms. Guzman submitted five
exhibits in evidence on her direct case. [See Exhibits 1, 2, 3, 8 and 9].
Exhibit 1 is a DOCS request and report of consultation form indicating a
referral on February 20, 2004 for routine physical therapy, and the record of
the appointment and treatment given on March 21, 2004. Exhibit 2 is another
DOCS form entitled “Request for Radiological Examination” dated
October 1, 2003 together with the report of same. Exhibit 3 appears to be
another DOCS form concerning a physical therapy session, indicating an
“original order date” of February 20, 2004, that the session is
“3 of 8”, and that the appointment session was on March 11, 2004.
Exhibit 8 is a DOCS request and report of consultation form dated October 1,
2003 requesting an orthopedic consultation. The form notes that claimant was
complaining of right knee pain, and that she “hit [her] knee 3 weeks ago
against hay truck [and] heard popping noise.” [Id.]. In quantifying
the “urgency of care” as provided on the form, the referring
physician checked the box “soon”, which is further described by the
form as “14 days.” [Id.]. The orthopedist’s notes
indicate the examination was had on October 21, 2003. [Id.]. Another
orthopedic referral was requested on October 28, 2003, containing the notation
that claimant be seen for follow-up within 2 to 3 months. [Exhibit 9].
On cross-examination, claimant was shown Exhibit A, a DOCS form entitled
“Refusal of Medical Examination and/or Treatment” dated September
12, 2003. She identified the signature thereon as hers, but denied that it
accurately reflected an indication that she wished to return to work rather than
be examined to determine if she was ready to return to work. Ms. Guzman
explained, “they can put whatever they want on the form.” She
claimed to have signed a blank document or to not remember exactly what the form
might have contained at the time of her signing.
She agreed that on September 8, 2003 there was also an incident in which she
claimed an injury to her little toe, and completed an injury form with relation
to that injury. Shown Exhibit D, claimant confirmed that it was the injury form
she signed, and that she knew the process. She explained, however, that
“usually the officer fills it out.” Asked whether an injury report
was completed for the injury asserted in regard to this claim, she said
“the doctor did,” and then again referred to the DOCS request and
report of consultation form dated October 1, 2003 signed by Dr. Sullivan and
suggesting physical therapy for the right knee. [See Exhibit 8]. She
repeated that the claimed injury was separate and apart from the toe injury, and
that the hematoma or “egg” was related to the accident claimed
herein. She could not produce the accident report she had testified on direct
was written up the next day by officers.
It was clarified that she recalled her last physical therapy appointment as
occurring in March 2004. She explained that she was released on parole on
November 7, 2004.
No other witnesses testified and no other evidence was submitted on
claimant’s direct case.
Defendant thereafter moved to dismiss the claim on several grounds, including
untimeliness. Counsel indicated that the claim herein was served on the Office
of the Attorney General on July 12, 2004
argued that the portion of the claim asserting a negligence cause of action
surrounding a fall in mid-September 2003 was clearly untimely, since no notice
of intention to file a claim or claim was served within ninety (90) days of
accrual of such a cause of action. See
Court of Claims Act §10(3).
Such defense was appropriately raised in the answer as a first affirmative
defense, and is preserved. See
Court of Claims Act §§10 and
Indeed, this Court dismissed two identical claims filed by claimant on October
1, 2004 and on February 9, 2005 on untimeliness and then manner of service
grounds, respectively. [See Guzman v State of New York
No.109912, UID # 2004-030-600, Motion No. M-69334 (Scuccimarra, J., December 10,
2004); Guzman v State of New York
, Claim No. 110840-A, UID #2005-030-534,
Motion No. M-69858 (Scuccimarra, J., June 2, 2005)]. The written motions were
not opposed by claimant. The Court noted in the decision and order on the
second motion, however, that if the claimant had served a timely notice of
intention after all in July 2004 - which was not clear from the papers - and if
the last date for physical therapy noted therein - April
- was accurate, then a properly served
claim alleging the cause of action for inadequate medical care might be timely.
[See Guzman v State of New York
, Claim No. 110840-A, Motion No.
With regard to the present claim, no evidence as to when the claim was received
by the Attorney General’s Office to establish time of service [see
Court of Claims Act §11 (a) (i)
] - such
as a date-stamped copy of the claim - was presented at trial.
Taking the affidavits of service filed with the claim at face value, since
defendant did not present contradictory evidence for submission as an initial
matter to establish when the claim was served, a notice of intention arguably
served on July 12, 2004 would nonetheless not be timely for a cause of action
asserting State negligence associated with a slip and fall occurring in
September 2003, or a cause of action alleging lack of adequate medical care
accruing, at the latest as established by the evidence on claimant’s
direct case, on March 31, 2004. Ms. Guzman was not able to further establish at
trial that a notice of intention to file a claim or a claim was served within
ninety (90) days of the last asserted date of physical therapy in March 2004 (as
established by the trial testimony), or within ninety (90) days of her slip and
fall in mid-September 2003.
The claim herein is dismissed accordingly on this basis alone.
More substantively, defendant also moved to dismiss the claim because claimant
failed to establish a prima facie case. Specifically, defendant argued
that claimant did not by expert testimony establish the reasonable standard of
care for whatever medical treatment she received or did not receive, failed to
establish any causal connection between the claimed slip and fall and the
claimed injury sustained, and offered no medical evidence to show she is
suffering from the same injury and alleged lack of care to this day for which
she testified she is currently receiving physical therapy.
In rebuttal claimant argued that “they took x-rays in October 2003 and
she did not receive physical therapy until February 2004” and that this
delay alone was negligence.
Upon review of claimant’s evidence, including listening to her testify
and observing her demeanor as she did so, the Court finds that claimant has
failed to establish a prima facie basis for finding defendant liable.
To establish a prima facie case of negligence the following elements
must exist: (1) that defendant owed the claimant a duty of care; (2) that
defendant failed to exercise proper care in the performance of that duty; (3)
that the breach of the duty was a proximate cause of claimant’s injury;
and (4) that such injury was foreseeable under the circumstances by a person of
ordinary prudence. No evidence was adduced concerning the circumstances
surrounding the alleged slip and fall claimant said occurred in mid-September
2003 to establish any basis for State liability.
With regard to a cause of action for inadequate medical care, 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 a
substantial factor or a proximate cause of the injury or other damage. 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. A medical expert’s
testimony is necessary to establish, at a minimum, the standard of care.
Spensieri v Lasky, 94 NY2d 231 (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).
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 Hosp.-Cornell Med. Ctr., 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).
“Under both [medical malpractice and medical negligence] theories . . .
claimant must establish that the negligence of the State or the State’s
deviation from the accepted standard of care was the proximate cause of the
claimant’s injuries (see Bennett v State of New York, 31
AD3d 1069, [820 NYS2d 653] . . . Kagan, 221 AD2d at 11, 16-17 [646 NYS2d
336]).” Lowe v State of New York, 35 AD3d 1281,1282 (4th Dept
2006). The doctor is liable only if he or she was negligent, and if such
negligence was a substantial factor in causing the patient harm.
In this case, only the testimony of the claimant, and scattered medical
records, have been presented in support of any claim of inadequate medical care.
No competent medical evidence was presented by claimant, 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
medical evidence on any medical issue and thus no proof that accepted standards
of care were not met. Arguing that the asserted delays in treatment were
unreasonable, without a medical expert explaining what reasonable care would be,
does not suffice. Cf. Stanback v State of New York
, 163 AD2d 298
(2d Dept 1990).
Accordingly, the medical
malpractice cause of action 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 Hosp.-Cornell Med. Ctr., 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.
The defendant’s motion to dismiss for untimeliness as well as for failure
to establish a prima facie case, upon which decision was reserved at the
time of trial, is hereby granted, and Claim Number 111112 is dismissed in its
Let Judgment be entered accordingly.