New York State Court of Claims

New York State Court of Claims
OLEMAN v. THE STATE OF NEW YORK, # 2009-030-031, Claim No. 113119


Pros se inmate claim of inadequate medical treatment dismissed after trial. No medical expert to show what reasonable standard of care was, or that any causal connection between alleged delay in receiving, or inadequacy of, physical therapy and harm suffered (if any).

Case information

UID: 2009-030-031
Claimant(s): ROBERT OLEMAN
Claimant short name: OLEMAN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113119
Motion number(s):
Cross-motion number(s):
Claimant's attorney: ROBERT OLEMAN, PRO SE
Third-party defendant's attorney:
Signature date: December 7, 2009
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Robert Oleman alleges in his claim that defendant's agents at several correctional facilities failed to provide him with adequate medical care and proper facility placement between June 29, 2005 and October 25, 2006, causing him to suffer injury. In prior motion practice, defendant's cross-motion to dismiss the claim was granted in part. [See Oleman v State of New York, UID # 2007-030-526, Claim No. 113119, Motion Nos. M-72850, CM-72956 (Scuccimarra, J., May 14, 2007)]. The only portion of the claim remaining to be heard is alleged negligent failure to provide adequate medical care (including physical therapy) within ninety (90) days before service of the claim, that is from September 19, 2006 to December 18, 2006. Any cause of action arising from the purported negligence surrounding the alleged fall in July 2005 was dismissed. Trial of the matter was held by video conferencing technology on October 20, 2009.

Mr. Oleman was the only witness to testify on his direct case. By way of background, claimant testified that on "9-2-05"(1) he was discharged, with discharge instructions, from Erie County Medical Center [ECMC] after surgery to his cervical spine. The discharge instructions included the direction that he receive "OT [occupational therapy] and PT [physical therapy] for ambulation, ADLs [activities of daily living] strengthening. No manipulation of C-spine." [See Exhibit 1]. It is noted therein that claimant was seen, evaluated and "discharged as independent" by the physical therapy department, and that the occupational therapy department "recommend[ed] continued occupational therapy for ADLs and ambulation on an outpatient basis at the correctional facility." [Ibid.]. There is a notation that he have "activity as tolerated [AAT]" and that he have an "aspen collar on at all times." [Ibid.]. After the two week post-operative visit on or about September 15, 2005, it was noted that claimant was "not getting OT/PT." [Ibid.]. As Mr. Oleman understood it, the therapy was being suggested because he had been having problems putting his socks and shoes on, as well as involuntary urination and the like.

A "request and report of consultation" form from the correctional facility with a referral date of September 6, 2005 and a signature by a consultant of September 19, 2005 indicates as a reason for consultation that he "needs p.t. for strengthening and ambulation. [ADLs] impaired

. . . " [Exhibit 2]. He said he never received therapy for his upper extremities, and argued that because of the failure to provide appropriate physical therapy at Auburn Correctional Facility [Auburn] and Wende Correctional Facility [Wende] he was

"not able to get my strength back and things got worse and atrophied. I never got my senses back. I might have received 80% of my senses back but I didn't because they did not give me the physical therapy. The original surgery to my cervical spine was in August 2005 at Erie County Medical Center. Physical therapy was recommended by Dr. Bennett from Erie, but I never received the pt at Wende although they were aware of it, and didn't at Auburn, although they too were aware of it, (they put it in the computer) so I never got the benefit of the recovery that I should have received to ADLs and UEs . I don't have the upper strength, or range of motion with my neck. I am not saying that I would have had all the movement, but it would have been better. They had me in bed for eight months when I was only supposed to be in for sixty days. They were supposed to take off the collar, but they didn't because the doctor wouldn't sign off."

By way of contrast, claimant said that when he received other surgery in 2003 to the same part of the cervical spine he "had no problems." He argued that the treatment that followed that surgery should have been the same as that received after the 2003 surgery. He submitted the physical therapy recommendations made after the 2003 surgery [see Exhibit 7] to serve as the standard for treatment after the 2005 surgery. It is noted that Exhibits 1 through 5 all concern events and treatment occurring in 2005, well beyond the 90-day time period before this claim was filed. Requests for and reports of consultations had during 2006 are included in Exhibit 6.

Claimant summarized:

"Because I did not receive physical therapy, I was not able to get my strength back and things got worse like atrophied. I never received my senses back . . . When Dr. Weinstock put me in for hip therapy I received it in a matter of thirty days - before that none - he put in referral forms etc. Wende and Auburn did not. They did not follow up. They stuck me in a bed. I had sores on my neck from the collar. I had stiffness and pains shooting from my neck to lower back from the collar. I fell down. Dr. Weinstock treated me for numerous falls there - he recommended that I be moved to a wheelchair facility . . . I have thirty years behind the wall and he's the best I ever got!"

During cross-examination claimant clarified that he was at Auburn from August 2005 to April 21, 2006 but was also at Wende intermittently during that period. He explained that ECMC was "three hours away from Auburn", so he would be moved to Wende after treatment at ECMC. He said that he "kept going back and forth." Auburn would send him to ECMC, then he would be discharged to Wende "for, say, one week waiting for transfer back to Auburn then like six weeks later go through the same process." He arrived at Five Points Correctional Facility [Five Points] on April 21, 2006, and remains there, receiving treatment from Dr. Weinstock, with whose treatment he is very satisfied.

Mr. Oleman admitted that at Five Points he received "hip therapy" ("I've had hip problems for twenty years") and indeed expressed himself as happy with that treatment, but reiterated that he has never received therapy for his "upper extremities" or for his "ADLs. The UE [upper extremities] is . . . not just for the neck, it adds strength, range of motion. I can't tell the difference between feeling metal and wood, for example, I can't feel cotton." Claimant also agreed that his physicians have always told him to lose weight, but said the weight loss direction has only to do with his hip problem. ("My neck, my fingers, toes . . . have nothing to do with my weight. Whatever preexisting conditions I had just got worse because they left me in a bed for eight months.")

No other witnesses testified, and no other evidence was submitted on claimant's direct case.

Defendant called Dr. Daniel Weinstock, claimant's treating physician at Five Points, and employed by the New York State Department of Correctional Services [DOCS] since 2004. He indicated that he treated Mr. Oleman bearing in mind his history as a "post-operative patient after cervical spine surgery for removal of a herniated disc and fusion in August 2005, and a prior remote fusion and discectomy at several lower levels below that . . . C-4 thru C-7, in 2003." Dr. Weinstock said Mr. Oleman was treated for the results of the surgeries and for weight-loss issues, as well as issues concerning degenerative arthritis in the hips. Dr. Weinstock said:

"When Mr. Oleman arrived in April 2006, he was seen by a specialist in physical medicine and rehabilitation and evaluated for his functional capabilities as a patient in a wheelchair and to determine what therapy might be appropriate for him at that time. My understanding was that his strength in his upper and lower extremities was quite good, that he'd made a reasonable convalescence from his prior surgery and that the goals that were set out for him of trying to improve his stamina and endurance to try to get him out of the chair and ambulating more independently - he was able to walk with and without a cane even prior to any therapy - but the goal was to increase that stamina because this is a large facility, there are long distances involved, and we were still hopeful that he might be able to maneuver without a wheelchair. It was also felt that he would benefit from aerobic kinds of conditioning exercises consistent with some weight reduction which would also improve his ability to ambulate. Therapy was focused on improving his strength and endurance for walking, weightbearing activities as well as some non-weightbearing, such as stationary bicycle riding in order to increase his aerobic endurance and to help him with weight reduction. The consultation was for that, for ambulation and ADLs. Mr. Oleman received that therapy up until the time that the [physical therapy] . . . people decided he'd reached the plateau of performance; he could complete some home exercise program on his own at home, albeit it would be limited with regard to intensity, but . . . [physical therapy] did not feel he would achieve much more, if any, progress from continuing [physical therapy]. [Physical therapy] is an adjunct as a treatment. It is not a definitive treatment in many cases but a lifelong type of activity people learn to do what they need to do on their own and adapt themselves - there is no 'hard' end point where you say 'aha!' you have reached the point where . . . [physical therapy] can be discontinued. There is some subjective judgment involved in determining whether the patient will improve or plateau. He has received what [physical therapy] said he should receive."

Dr. Weinstock said that claimant received physical therapy twice a week for six (6) weeks and then he received twice-a-week physical therapy for four (4) more weeks. Thereafter, no more physical therapy was recommended. Mr. Oleman had "reached a plateau, and further physical therapy would not be of reasonable benefit." He said claimant was to continue in a "home exercise program (HEP)."

On cross-examination, when asked by claimant (sort of) why physical therapy reports and evaluations [see Exhibit 6] "say nothing about ADLs or UE-s for my neck," Dr. Weinstock said the claimant's

"neck had a fusion at four to five levels - not sure about the levels because this was the first surgery in 2003 given somewhere in Staten Island - not sure of how many fused levels at his neck - but at minimum four levels, which means that the vertebrae are solidified into one unit and through bone grafting or artificial means such as a metallic plate; this is going to reduce range of motion and the goal here is not to increase range of motion of the neck which could break the fusion, but the goal is stabilizing the neck. In the record it can be seen that there are directions not to increase the range of motion of the neck. It would not be advocated. The UE strength is quite good in the upper extremities, in terms of sensation in the hands, therapy is not going to achieve a benefit for that . . . the needs here were in the lower extremities. The cervical spine involves both upper and lower extremities. The primary need Mr. Oleman had (and has) relates to use of his lower extremities and the limitations in terms of sensation or ADLs like putting on socks or tying shoelaces are not going to be addressed by physical therapy to the upper extremities."

In further summary, Mr. Oleman repeated that "they dropped the ball from the beginning, had they done more immediately, I would have had the opportunity to maybe get better. I didn't need it in the four-month period - I might have needed it eighteen months earlier."

No other witnesses testified and no other evidence was submitted.

Thereafter, defendant moved to dismiss the claim because claimant failed to establish a prima facie case. Specifically, defendant argued that the gravamen of the claim is that an alleged failure to provide reasonable and adequate medical care caused claimant harm. In order to prove such a claim, a medical expert was needed. Claimant did not by expert testimony establish the reasonable standard of care for whatever medical treatment he received or did not receive, and failed to establish any causal connection between any delay in receiving physical therapy or inadequacy of such therapy, and any injury sustained, by expert medical evidence. Upon review of claimant's evidence, including listening to him testify and observing his demeanor as he did so, the Court agrees that claimant has failed to establish a prima facie basis for finding defendant liable. While Mr. Oleman was clearly convinced that he received substandard care, and should have received physical therapy in accordance with his interpretation of the post-operative medical directives, without more than his own conviction, his claim is not established.

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 State is liable only if its physicians or caregivers were 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).(2)

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. Under the circumstances here, even beyond the 90-day limitation allowed by the earlier motion practice, there is a failure to establish what regulations might apply, and what standards there were, to evaluate whether judgments made during the course of treatment were made in the exercise of reasonable care, and whether any violation of same is causally connected to a harm suffered.

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 113119 is dismissed in its entirety.

Let Judgment be entered accordingly.

December 7, 2009

White Plains, New York


Judge of the Court of Claims

1. Quotations are to trial testimony unless otherwise indicated.

2. "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 a claim involving an over three-year delay in diagnosing torn meniscus and ligament injury after a fall on wet stairs.