Inmate med mal dismissed without expert proof.
|Claimant short name:||BELLAMY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Terry Jane Ruderman|
|Claimant's attorney:||JEROME BELLAMY
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Elyse Angelico, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 5, 2010|
|See also (multicaptioned case)|
Claimant seeks damages based upon the alleged inadequate medical care he received during his incarceration.
Claimant testified that in 2002 he presented at the Sing Sing Correctional Facility (Sing Sing) infirmary with complaints of testicular pain. A subsequent diagnosis of epididymal cysts was made (Ex. 2). Claimant was treated and evaluated over the next two years. On August 3, 2004, a epididymectomy was performed in Mount Vernon Hospital to remove the cysts. According to claimant, since the surgery he has suffered, inter alia, from hypogonadism (a low testosterone level) and erectile dysfunction issues. Claimant concedes that he signed a consent form for the operation yet asserts that he thought that the procedure involved draining the cysts and was akin to a vasectomy; therefore he maintains that he did not consent to the surgery. Claimant's more than 600 page ambulatory health record was received into evidence without the aid of any testimony from claimant's treating physician or a medical expert who reviewed the records (Exs. 1, 2, A).
Physician's Assistant Phillip Williams, who has been employed by Sing Sing for 27 years, testified on behalf of defendant. Referring to claimant's medical record, Williams testified to claimant's treatment from 2002 to 2007, which included treatment by several doctors, including a urologist. Williams noted claimant's consent to surgery and could not otherwise account for claimant's position that he did not consent to the removal of the cyst.
It is well settled that the State has a duty to provide ordinary and appropriate medical care and treatment to its inmates (see Mullally v State of New York, 289 AD2d 308). The theory of simple negligence is restricted to those cases where the alleged negligent acts are readily determinable by the trier of the facts on common knowledge (see Weiner v Lenox Hill Hosp., 88 NY2d 784; Rey v Park View Nursing Home, 262 AD2d 624). However, where the treatment received by the patient is an issue, the more specialized theory of medical malpractice must be followed (see Fragosa v Haider, 17 AD3d 526).
To establish a claim for medical malpractice, claimant has the burden of proving, by a preponderance of the credible evidence, that defendant departed from good and accepted medical practice and that such departure was a substantial factor or a proximate cause of the claimed injury. "[A] mere possibility of cure does not satisfy a prerequisite to liability" rather it must be more probable than not that the claimed injury was caused by defendant's malpractice (Mortensen v Memorial Hosp., 105 AD2d 151, 158, see also Candia v Estepan, 289 AD2d 38). A departure from good and accepted medical practice cannot be inferred from expert testimony; rather the expert must expressly state, with a degree of medical certainty, that defendant's conduct constitutes a deviation from the requisite standard of care (see Stuart v Ellis Hosp., 198 AD2d 559).
The Court has considered all of the evidence, including listening to the witnesses testify and observing their demeanor as they did so, and finds that claimant has failed to meet his burden of establishing that the medical treatment he received was a departure from good and accepted medical practice and was a proximate cause of his alleged injuries. Significantly, claimant failed to produce any competent medical evidence, either from a treating physician or from an expert whose opinion was based upon the available medical records. In the absence of such evidence, claimant's own unsubstantiated assertions and speculations were insufficient to establish merit and a prima facie case (see Wells v State of New York, 228 AD2d 581; Mosberg v Elahi, 176 AD2d 710, affd 80 NY2d 941; Quigley v Jabbur, 124 AD2d 398). The Court also rejects claimant's argument that there was an unreasonable delay in diagnosis and treatment (see Kaminsky v State of New York, 265 AD2d 306 [State's failure to diagnose inmate's condition did not constitute medical malpractice and was not a proximate cause of inmate's death; nor would earlier diagnosis have allowed another course of treatment]). Claimant also failed to show that any delay negatively impacted him in the treatment he received or deprived him of an appreciable chance of avoiding any loss suffered (see Naughton v Arden Hill Hosp., 215 AD2d 810 [even assuming defendant committed malpractice in its failure to diagnose and admit patient to hospital, there was no proof of proximate cause, i.e., that, had the patient been admitted, the risk of a heart attack would have been prevented or lessened]; Brown v State of New York, 192 AD2d 936 [no proof that delay in treatment contributed to the loss of claimant's larynx]).
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is hereby GRANTED and all other motions not heretofore ruled upon are hereby DENIED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 116305-A.
February 5, 2010
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims