Claimant, a former inmate proceeding pro se, seeks to recover damages from
defendant State of New York (defendant) for failure to provide adequate medical
care after claimant injured his left thumb while playing basketball at Sullivan
Correctional Facility (Sullivan). Trial of the matter was held in the
Binghamton District on July 1, 2009.
Claimant testified that he was playing basketball in the gym at Sullivan on
March 21, 2002, when he injured his thumb. He said he stayed in the gym until
it closed, and then went to the infirmary to get treatment. He said in
subsequent days he made “a lot of trips back and forth . . .
asking for treatment and asking to see the
During the course of these
treatments, the thumb was soaked and wrapped, and he was given antibiotic
ointment and Tylenol.
Claimant said that over the course of a few days, the thumb and wrist area
became extremely swollen, with a great deal of fluid under the skin.
Eventually, he said, there were red streaks going from his wrist up his arm. He
stated that he was threatened with disciplinary action by the infirmary staff
for coming back so frequently. He testified that he eventually had to go to a
correction officer to get assistance in receiving treatment for the injury. He
said that he spoke to a Sergeant Wexler, who took him to the infirmary
“the back way,” where he was examined by a nurse and promptly taken
to an emergency room to have the thumb lanced. He said that the nurse told him
the red streaks were “blood poisoning.” Claimant was given a course
of antibiotics as well. He said the thumb did not heal correctly, and he had
subsequent infections. The nail never grew back properly. Claimant did state
that he has had no loss of function in the digit.
Claimant’s Ambulatory Health Record
entry for the date of March 21, 2002
indicates that claimant was seen at 1:25 (presumably in the afternoon), and
states: “[inmate] state [sic] 2 days ago I jammed my finger while playing
The AHR further indicates
that the left thumb was swollen, and the middle of the fingernail was black in
color, and that claimant was unable to bend the thumb at the knuckle. According
to the AHR, claimant was instructed to return to the infirmary if the pain or
swelling continued or increased.
The AHR next indicates that he was seen in the infirmary at 7 p.m. on March 22,
2002. That note indicates that the left thumb was swollen, with a
“black/blue hematoma 2x size end of nail split.” The AHR further
states that claimant was to be monitored closely.
Claimant was next seen (according to the AHR) at 8:50 a.m. on March 23, 2002.
The note again indicates that the thumb was swollen and discolored, and also
states that claimant stated “I have a little pain.” Claimant was
seen again at the infirmary at 4:30 p.m. on the same day, at which time he was
encouraged to continue soaking the thumb, according to the AHR.
The next AHR for March 23, 2002 notes a time of 8:30 p.m. The lengthy entry
contains the following notations:
abcess [sic] lanced antibiotic
Dr. Sidorowicz, Facility Health Director at Sullivan for the past 18 years,
also testified at trial. Sidorowicz stated that the nurses followed the
facility’s protocol in treating claimant. He said that the injury was
already “a few days old” when claimant was first seen on March 21,
2002 and was not an “acute injury.” He said that if the injury had
been fresh (i.e. within 24 hours), the blood would have been
“evacuated” by drilling through the fingernail, and claimant might
not have lost the nail. He said that as time passes with such injuries,
however, the swelling forces the nail out of the nailbed, which had already
happened when claimant first sought treatment for the injury. At that point, he
said, the only appropriate treatment is to soak the finger, apply topical
antibiotics and monitor for infection, which was the treatment given claimant.
He said that the nurses would have been observing claimant’s injury for
indications of paronychia, which he defined as an infection involving the soft
tissue at the base of the fingernail. He stated that claimant did begin to
develop the symptoms of paronychia on March 23, 2002, at which time he was sent
to the emergency room for treatment.
On cross-examination, Sidorowicz testified that the red streaks on
claimant’s arm were signs that the lymphatic system was involved, and that
“the immune system was working overtime.” However, he stated that
claimant did not have blood poisoning, as his white blood cell count (taken at
the emergency room) was still within normal range. He said that
claimant’s infection, although severe, was “localized,” so
that the white blood cell count would not be abnormal under these
Sidorowicz could not explain why, if claimant was being monitored for
infection, there was no indication that his temperature was taken the first two
times he visited the infirmary on March 23, 2002. He said that it would have
been appropriate to take claimant’s temperature, and it should have been
recorded, and that the failure to do so was “bad judgment.”
Defendant moved to dismiss at the close of claimant’s case. The Court
reserved decision on that motion and now denies it.
“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
, lv denied 76 NY2d 701 ; see also Auger v State of New
York, 263 AD2d 929 ). Further, it is the State’s duty to render
medical care “without undue delay” and, therefore, whenever
“delays in diagnosis and/or treatment [are] a proximate or aggravating
cause of [a] claimed injury,” the State may be liable (Marchione v
State of New York, 194 AD2d 851, 855 ). In order to recover for
damages arising from a delay, a claimant must prove that the delay in diagnosis
or treatment was a proximate cause of the injuries. In other words, a claimant
must provide evidence “that there was a ‘substantial
possibility’ that the [complained of loss] was caused by the delay
and that the State’s negligence deprived claimant of an appreciable chance
of avoiding the loss suffered” (Brown v State of New York, 192 AD2d
936, 938 , lv denied 82 NY2d 654 ; see Kimball v
Scors, 59 AD2d 984, 985 , lv denied 43 NY2d 648 ;
see also Kennedy v Peninsula Hosp. Ctr., 135 AD2d 788, 792
; Mortensen v Memorial Hosp., 105 AD2d 151, 157-158 ).
In the instant case, no medical evidence was presented, either in the form of
claimant’s medical records nor the trial testimony of Dr. Sidorowicz,
which indicated that any exacerbation of claimant’s existing injury
resulted from a delay in treating claimant. To the extent that claimant made
any such assertions, they are insufficient, without the supporting testimony of
a medical expert, to establish causation, a necessary element in a medical
malpractice claim (Trottie v State of New York, 39 AD3d 1094 ;
Lowe v State of New York, 35 AD3d 1281 ; Wolfe v Samaritan
Hosp., 104 AD2d 143 ). Accordingly, claimant cannot recover on a
cause of action for medical malpractice.
However, the State may be found liable for damages arising out of ministerial
neglect where the proof shows that correctional facility employees violated
administrative protocol in denying an inmate emergency medical attention where
the condition complained of warrants such attention (Kagan v State of New
York, 221 AD2d 7 ).
The Court credits claimant’s testimony that the condition of the injury
(the size of the swelling, the color of the injury, and the red streaks up
claimant’s arm) was the same at the time of claimant’s first visit
to the infirmary at 8:50 a.m. on March 23, 2002 (as well as at the second visit
at 4:30 p.m.), as it was at 8:30 p.m., when claimant’s condition was
judged serious enough to send him to the emergency room for immediate treatment.
Moreover, Sidorowicz could not explain to the Court’s satisfaction why
claimant had to get a correction officer to intervene with the infirmary in
order for claimant to actually receive treatment for his injury on the evening
of March 23, 2002, after two prior visits the same day. These issues, when
combined with the failure of the infirmary staff to take or record
claimant’s temperature (which Sidorowicz stated would be standard protocol
in a case where the possibility of infection was being monitored), lead the
Court to a finding that defendant is liable for ministerial neglect for its
failure to treat claimant from 8:50 a.m. on March 23, 2002 to 8:30 p.m. that
The Court finds that the delay was unreasonable under the circumstances, and
claimant is awarded the sum of $900 for his pain and suffering during that time
period. Given the failure of proof that the delay caused any ongoing injury, as
discussed above, no award is made for any ongoing injury. 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.