New York State Court of Claims

New York State Court of Claims

BLUNT v. THE STATE OF NEW YORK, #2009-040-061, Claim No. 109046


Following trial, Claim dismissed as Claimant failed to establish by a preponderance of the credible evidence that medical care rendered by State was not appropriate.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Herman Blunt, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Michael C. Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
July 13, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Pro se Claimant, Herman Blunt, has failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with his Claim. The trial of this Claim was held by video conference on May 28, 2009, with the parties at Clinton Correctional Facility in Dannemora, New York and the Judge at the Court of Claims in Saratoga Springs, New York.

At the beginning of the trial, Claimant submitted into evidence, upon stipulation, as Exhibit 1, a copy of his Claim with documentation attached. Claimant, who was the only witness, testified that, on January 8, 2002, when he got off the bus that brought him to Upstate Correctional Facility in Malone, New York (Upstate), he was assaulted by a Correction Officer in a hallway. Claimant further stated that he was taken to see a nurse a few hours later and complained that his shoulder hurt. He said that the nurse failed to treat him and he was taken to a cell. Claimant stated that nothing was done concerning his shoulder until March 2002, after someone from the Inspector General’s Office came to speak to him. Thereafter, Claimant was seen by a doctor in March 2002 and was taken for an x-ray of his shoulder. Mr. Blunt testified that the x-rays revealed that he had a grade II shoulder separation.

Claimant also testified that he was referred to a specialist, that he had extensive physical therapy sessions, and that he was prescribed pain medications. He said that the therapy and pain medications did not help. He also stated that he had shoulder surgery in 2004. However, his shoulder is still “messed up” and he needs more surgery. Claimant alleges that he did not receive proper medical care from Defendant.

“It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons” (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]). In order to maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, “a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice” (Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804 [1976]). “The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by [laypersons] or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts” (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]). In a medical malpractice claim, where such issues are not within the usual experience and knowledge possessed by laypersons, expert medical testimony is required in order for claimant to meet the burden of proving that defendant’s alleged negligence constitutes a deviation or departure from accepted practice, and evidence must be provided that such deviation was the proximate cause of the injury asserted (Myers v State of New York, 46AD3d 1030 [3d Dept 2007]; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005]; Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; Thomas v State of New York, 10 Misc 3d 1072[A], 2005 Slip Op 52230[U]).

Claimant’s medical records submitted into evidence by the Defendant as Exhibit A contain, among other documents, copies of Claimant’s Ambulatory Health Records through July 2003 (AHR). Those documents establish that Claimant was seen by members of the Upstate medical staff on January 18, January 24, February 5, March 11 and March 14, 2002 because he was complaining of right shoulder pain. There is also an AHR entry dated March 22, 2002 reporting that Claimant had right shoulder pain and a possible rotator cuff injury. It further records that x-rays of the right shoulder were ordered. The AHR also establishes that he was seen several times in April 2002 for shoulder pain and that an orthopedic consultation was ordered. It appears that, in June 2002, he was seen by the orthopedist and physical therapy was ordered for Claimant. At that time, the orthopedic surgeon, Dr. R. Mitchell Rubinovich, believed Claimant had chronic rotator cuff tendinitis. AHR entries indicate Claimant did receive physical therapy during 2002 and 2003. It further appears that, in July 2003, it was determined that additional physical therapy likely would not help and that more surgery might be necessary.

The Court has considered all the evidence, including a review of the exhibits and listening to the witness testify and observing his demeanor as he did so. Claimant provided earnest and straightforward testimony concerning the deficiencies he perceives in the treatment he received. Mr. Blunt’s sincerity notwithstanding, the Court finds that the acts or omissions Claimant complains of cannot be assessed by the trier of fact on the basis of its common everyday experience. Thus, in the absence of any testimony from a medical expert that the medical treatment Claimant received and the medical tests performed were improper, the Court determines and concludes that Claimant has failed to establish by a preponderance of the credible evidence that the medical care provided to him was not appropriate or adequate.

Defendant’s motion to dismiss, made at the conclusion of the trial and upon which the Court reserved decision, is now granted and the Claim is dismissed.

The Chief Clerk is directed to enter judgment accordingly.

July 13, 2009
Albany, New York

Judge of the Court of Claims