New York State Court of Claims

New York State Court of Claims

SHEPHERD v. THE STATE OF NEW YORK, #2009-044-005, Claim No. 108486


Defendant found liable for failure to provide inmate claimant with prescription pain medication and for failure to provide claimant with his medical boots while outside his cell. Claimant awarded damages in the amount of $1,075.

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:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 7, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim asserting causes of action for medical negligence which allegedly occurred while he was confined at Elmira Correctional Facility (Elmira). Claimant asserts that defendant State of New York (defendant) allegedly failed to provide him with pain and asthma medications as prescribed by a facility physician, and also failed to supply him with a new pair of medical/orthopedic boots in 2003.[1] Defendant answered and asserted several affirmative defenses. A trial in this matter commenced on October 23, 2007 at Elmira, and was adjourned in order for defendant to submit additional documentary evidence. This evidence has been submitted to both the Court and claimant, and the record in this matter is now complete.[2]

With respect to his allegation that he did not receive medications which were prescribed for him, claimant testified that he suffers chronic back pain caused by two herniated discs (L5, S1). He was examined in August 2003 by a facility physician who prescribed Percocet (a pain medication) twice a day for 15 days. Claimant testified that he only received one dose of the medication. Claimant stated that when he took that one dose of Percocet, his pain was somewhat relieved. However, on a scale of one to five, claimant rated his pain without the medication as “five-plus.”[3]. He explained that at times the pain was so severe that he was unable to move, and often could not get out of bed for 15 to 20 minutes. Claimant testified that he was eventually informed that there had been a lack of communication between medical and security personnel, and that because he was in keeplock, he should have been escorted to receive his medication.

Maureen Mack, a Pharmacist 2, provided photocopies of prescriptions that had been issued to claimant for the time period during July 24, 2003 through September 29, 2003 (Claimant’s Exhibit 2). She testified that on August 14, 2003, claimant was issued a prescription to take 2 tablets of Percocet in the morning and 2 tablets at bedtime for 15 days. She stated that because Percocet is a narcotic drug, it was required to be dispensed by a nurse, one dose at a time. Mack further said that the pharmacy would give the facility’s nurses a stock supply of 100 tablets, and the nurses would thereafter dispense the medication to the appropriate inmate pursuant to that inmate’s prescription. She did indicate that if the inmate refused the drug or was not at his specified location when the dose was to be administered, the drug would be returned to the nurse’s stock supply, not to the pharmacy. She stated that there was a separate procedure whereby the nurse would account for the pills in his or her possession.

Mack reviewed claimant’s Treatment and Medication Record (the Medication Record) for August 2003 (Defendant’s Exhibit A). She testified that the facility’s nurses were required to complete this type of medication record when they administered certain medication, such as a narcotic drug like Percocet, to an inmate. Mack indicated that Nurse J.C.[4] issued one dose of Percocet to claimant during the evening of August 15, 2003. She stated that based upon the lack of any further initials during August 14-28, 2003, it appears that claimant did not receive any other doses of Percocet.

There is a subtle distinction between medical negligence and medical malpractice. When the allegedly wrongful conduct “constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician,” the cause of action is for medical malpractice, rather than negligence (Bleiler v Bodnar, 65 NY2d 65, 72 [1985]; see Scott v Uljanov, 74 NY2d 673 [1989]). “By contrast, when ‘the gravamen of [a claim] is not negligence in furnishing medical treatment to a patient, but the [provider’s] failure in fulfilling a different duty,’ the claim sounds in negligence” (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996], quoting Bleiler v Bodnar, supra at 73). However, “[u]nder either theory, ‘[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is

. . . required’ to establish that defendant’s alleged negligence or deviation from an accepted standard of care caused or contributed to claimant’s injuries ” (Wood v State of New York, 45 AD3d 1198, 1198 [2007], quoting Wells v State of New York, 228 AD2d 581, 582 [1996], lv denied 88 NY2d 814 [1996]; see also Tatta v State of New York, 19 AD3d 817, 818 [2005], lv denied 5 NY3d 712 [2005]).

Claimant’s allegation that defendant failed to dispense Percocet, once it was properly prescribed, is clearly a claim for medical negligence. Based upon claimant’s uncontradicted testimony, which is further supported by the Medication Record, it is evident that defendant did not provide claimant with the pain medication prescribed by his physician. The effect on a patient of the lack of a prescribed drug is generally beyond the ordinary experience and knowledge of a layperson, and must usually be supported by expert testimony (see Duffen v State of New York, 245 AD2d 653 [1997], lv denied 91 NY2d 810 [1998]; see also Wood v State of New York, supra; Tatta v State of New York, supra; Wells v State of New York, supra). However, in this particular instance, expert testimony is not required. The effect of defendant’s failure to dispense Percocet – a strong pain reliever – to a patient suffering from two herniated discs is clearly within the ordinary experience and knowledge of a layperson. Accordingly, the Court finds that claimant is entitled to damages in the amount of $725 for the deprivation of 29 prescribed doses of Percocet from August 14, 2003 through August 28, 2003.

Claimant also alleges that at the same time he was denied the Percocet, he did not receive one of his prescription asthma medications, Accolate. Claimant indicated that because he had not received the Percocet, he was later required to go back to the doctor, and at that time he was given another prescription for the Accolate. A review of the medications that claimant was prescribed during the time period from July 24, 2003 through September 29, 2003 indicates only one prescription for Accolate, which was issued on September 29, 2003 (Claimant’s Exhibit 2; Defendant’s Exhibit B). Further, claimant did not introduce any portion of his Ambulatory Health Record to establish that he had been prescribed the Accolate prior to that time.[5] Because claimant has failed to put forth evidence that he was prescribed Accolate and did not thereafter receive it, this cause of action for medical negligence must be dismissed.[6]

Claimant also asserts a cause of action for medical negligence based upon defendant’s alleged failure to provide him with a pair of medical boots. Claimant was initially prescribed medical boots in 1999 and apparently received them in 2000. The medical boots were prescribed in order to take pressure off claimant’s right knee, which had previously been injured. According to the medical orders, claimant was required to wear the medical boots whenever he was walking more than 50 feet outside of his cell (Claimant’s Exhibit 10). Claimant stated that pursuant to a medical directive, he was entitled to receive a new pair of boots every year, or as needed, and that he received a new pair in 2001. He did not ask for new boots in 2002, because the boots were still in good condition and he did not feel any need for replacement. Claimant stated that in August 2003, he saw the facility physician at Elmira and requested new boots. In order for claimant to receive the new boots, he was apparently required to return his existing pair. Because claimant was in keeplock at that time, he stated that he was escorted from the clinic back to his cell, where he gave his boots to the escort officer who was to deliver them to the doctor. Claimant testified that he did not receive a new pair of medical boots until the “end of 2004, over a year later.”

Jill Northrop, a nurse practitioner, testified that there were various reasons for an inmate to be prescribed medical boots. Northrop acknowledged that inmates located in the Special Housing Unit (SHU) were not allowed to wear medical boots inside their cells, but stated that the restriction was imposed by Security and was not a medical issue. She further indicated that in 2003, there was no written directive for replacing medical boots; rather, the decision to issue new boots was made by the provider. That policy apparently remains in effect at this time, although an inmate can request a new pair of regular, non-medical boots on a yearly basis. Northrop testified that claimant did not ask for medical boots while he was at Elmira. She stated that based upon claimant’s SHU draft which was completed when he was transferred from Elmira to Upstate Correctional Facility (Upstate) (Defendant’s Exhibit C), he had a cane, right-knee brace and medical boots. Further, Claimant’s Ambulatory Health Record dated October 10, 2003 indicates that claimant had a “pair [of] medical ortho Boots in Bin” (Defendant’s Exhibit D).

Contrary to Northrop’s testimony, claimant’s Ambulatory Health Record dated November 20, 2001 indicates that he did receive new medical boots while he was located at Elmira (Claimant’s Exhibit 3). Claimant explained that shortly after arriving at Upstate, he was examined by Health Services and was required to inform the staff of any items that had been prescribed for him, including medications and the medical boots, even if he did not have those items in his possession. Claimant denies having access to his medical boots at any time during his stay at Upstate, stating that he did not receive any medical boots from the time he left Elmira until late 2004, when he was housed at Wende Correctional Facility.

The Court finds claimant’s testimony – that he was not provided with his medical boots when he was outside of his cell at Upstate – to be entirely credible. Defendant’s own documentation establishes that Security was reminded on more than one occasion that claimant was to be issued his medical boots when he was ambulating outside of his cell (Claimant’s Exhibits 8, 9 and 10). From this evidence, the Court draws the inference that Security had routinely failed to provide claimant with his medical boots when he was outside of his cell at Upstate. A review of the additional documentary evidence submitted by Assistant Attorney General James E. Shoemaker reveals that claimant was outside of his SHU cell at Upstate on several occasions during the period October 2003 through March 2004. Specifically, claimant walked between the draft room and his cell, a distance of approximately 1,011 feet, six different times. Claimant also walked approximately 1,485 feet to and from the cadre visiting room (where Tele-Med/Tele Psych conferences were conducted) three times, and approximately 220 feet to and from the Psychologist’s room on one occasion. Further, claimant walked approximately 1,280 feet to and from the infirmary on another occasion. All of these trips clearly required claimant to walk more than 50 feet, and he should therefore have been provided with his medical boots (Claimant’s Exhibit 10). Accordingly, the Court finds that claimant is entitled to damages in the amount of $350.

In conclusion, claimant is awarded damages in the amount of $725 for withholding of the prescription medication Percocet, and $350 for failing to provide him with his medical boots when he was walking outside of his cell at Upstate. Claimant’s cause of action for medical negligence based upon his failure to receive Accolate is dismissed. Any and all motions on which the Court may have previously reserved or which were not previously determined are hereby denied. Finally, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2). Let judgment be entered accordingly.

April 7, 2009
Binghamton, New York

Judge of the Court of Claims

[1]. The Court previously dismissed claimant’s two causes of action alleging a violation of the Clean Indoor Air Act (Shepherd v State of New York, Ct Cl, Jan. 31, 2007, Schaewe, J., Claim No. 108486, Motion No. M-72452, Cross Motion No. CM-72483).
[2]. The additional documentary evidence consists of a Memorandum dated July 31, 2008 from Correction Officer R.A. Moore, Fire Safety Officer (Court Exhibit 1), and 10 pages of redacted logbook entries from Upstate Correctional Facility (Court Exhibit 2). Court Exhibits 1 and 2 are hereby admitted into evidence.
[3]. All quotes herein are taken from the Court’s recording of the proceeding, unless otherwise indicated.
[4]. The nurse’s first name may be either John or Julie, but the surname is completely illegible (Defendant’s Exhibit A).
[5]. Portions of claimant’s Ambulatory Health Record were filed with the Court on March 11, 2005 as part of defendant’s discovery responses. A review of the entries for August 2003 does not indicate that claimant was prescribed Accolate during that time period.
[6]. In any event, claimant did not introduce any expert testimony concerning the effects of the lack of Accolate. Notwithstanding claimant’s testimony that the drug is a steroid which helps keep his lungs clear and thus requires less frequent use of inhalers, such assertions are not within the ordinary experience and knowledge of a layperson (see Wood v State of New York, supra; Tatta v State of New York, supra; Duffen v State of New York, supra).