New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2009-044-016, Claim No. 106455


State found liable for ministerial neglect for failure to treat inmate claimant’s injuries incurred in recreational accident; claimant awarded $900.

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: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 26, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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 doctor.”[1] 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 (AHR)[2] 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 basketball.”[3] 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:
Sgt. Wexler brought [inmate] to infirmary to [check] finger
Per [inmate] he jammed [left] thumb 3/19 playing basketball, has been to [sick call]
4x per previous entries, claims swelling & pain [increasing].
Assessment - [left] thumb [to] wrist [approximately] 3x larger than [right], fingertip to 2nd knuckle purplish [to] black in color [with] blister like appearance, blood noted slouching under skin, no open areas, hot to touch, red streak noted [up] to anticubreal [sic] region. Dr. Sidoriwitz [sic] paged @ 8:48 [p.m.] . . .
8:49 [p.m.] - Received call back from Dr. Sid. orders to . . . transport to nearest E.R.

The final note for March 23, 2002 was made at 11:30 p.m., and states:
“[r]eceived call from . . . [Catskill Regional Medical Center]. [Inmate] returning
Tetanus given, no fracture
abcess [sic] lanced antibiotic therapy.”[4]

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 circumstances.

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 [1990], lv denied 76 NY2d 701 [1990]; see also Auger v State of New York, 263 AD2d 929 [1999]). 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 [1993]). 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 [1993], lv denied 82 NY2d 654 [1993]; see Kimball v Scors, 59 AD2d 984, 985 [1977], lv denied 43 NY2d 648 [1978]; see also Kennedy v Peninsula Hosp. Ctr., 135 AD2d 788, 792 [1987]; Mortensen v Memorial Hosp., 105 AD2d 151, 157-158 [1984]).

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 [2007]; Lowe v State of New York, 35 AD3d 1281 [2006]; Wolfe v Samaritan Hosp., 104 AD2d 143 [1984]). 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 [1996]).

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 same date.

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.

August 26, 2009
Binghamton, New York

Judge of the Court of Claims

[1]. All quotes herein are taken from the Court’s recording of the proceedings.
[2]. Claimant’s entire Ambulatory Health Record was admitted as Defendant’s Exhibit C.
[3]. At trial, claimant insisted that the injury occurred on March 21, 2002, the date he was first seen at the infirmary.
[4]. Records pertaining to claimant’s treatment at Catskill Regional Medical Center were included in Defendant’s Exhibit C.