New York State Court of Claims

New York State Court of Claims

GUZMAN v. THE STATE OF NEW YORK, #2009-030-026, Claim No. 111112


Synopsis


Claim that inmate not provided adequate medical care after slip and fall at her prison work assignment dismissed after trial as untimely served, and also for failure to establish prima facie a basis for State liability.

Case Information

UID:
2009-030-026
Claimant(s):
JUDY GUZMAN
Claimant short name:
GUZMAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111112
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
JUDY GUZMAN, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
October 20, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Judy Guzman alleges in claim number 111112 that defendant’s agents at various New York State Department of Correctional Services [DOCS] facilities, including Beacon, Fishkill and Bedford Correctional Facilities, failed to provide adequate medical care after she slipped and fell during a work assignment in mid-September 2003. More specifically, she alleges that she had been working on the farm at Beacon when she slipped and fell in mud while moving a heavy barrel of hay and cow manure.


Claimant testified that when she fell in “mid-September” it was “on her stomach” and she “had a hematoma”[1] and hurt her knee. Civilian employees managed the facility, and the officer stationed there was not present, she said. Thus, immediately after the fall, she was sent back to her housing unit. The next day she spoke with the correction officer on her housing unit, and she was sent to Fishkill for medical treatment. She was treated and released, but continued to suffer pain.

“Finally,”, she said, on October 1, 2003 they took an x-ray of her knee. She said that although
“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[2], and 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 11.

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, Claim 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 2004[3] - 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. M-69858, supra].

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)[4]] - 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).[5] 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 entirety.

Let Judgment be entered accordingly.

October 20, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. Quotations are to trial notes or audio recordings unless otherwise indicated.
[2]. It may be that the Assistant Attorney General misspoke. The present claim was filed in the Office of the Chief Clerk of the Court of Claims on July 7, 2005, making it more likely that it was served on the Attorney General’s Office on July 12, 2005. Alternatively, it may be that the Assistant Attorney General was making reference to a notice of intention, since the present claim indicates that a notice of intention was served on the Attorney General’s Office on July 6, 2004 (which would be more in keeping with a July 12, 2004 service date. [See Claim No. 111112, ¶ 14]. Moreover, attached to the filed claim are two affidavits of service. In one it is indicated that a notice of intention to file a claim was served on the Attorney General’s Office by certified mail, return receipt requested on July 6, 2004. A copy of the green card signed by the Attorney General’s Office on July 12, 2004 is part of the filing. The second affidavit of service attests to service of a claim upon the Attorney General’s Office on June 30, 2005. No copy of a green card that might be associated with a June 2005 date is included.
[3]. Claim No. 110840-A, ¶9.
[4]. “Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general. ”

[5]. “We find that the State unreasonably delayed properly diagnosing and treating the claimant for his injury, and that this failure constituted medical malpractice. Contrary to the State’s contention, these acts and omissions amount to something more than an honest error in professional judgment (see, Bell v New York City Health & Hosps. Corp., 90 AD2d 270, 279; Larkin v State of New York, 84 AD2d 438). Moreover, the State may not insulate itself under the professional medical judgment rule, since it did not exercise its judgment pursuant to a careful examination of the claimant’s condition (see, Bell v New York City Health & Hosps. Corp., supra)”, in claim involving an over three (3) year delay in diagnosing torn meniscus and ligament injury after a fall on wet stairs.