New York State Court of Claims

New York State Court of Claims
BRYANT v. THE STATE OF NEW YORK , # 2010-015-503, Claim No. 112740


Pro se inmate's medical malpractice claim was dismissed following trial for failure to present expert proof.

Case information

UID: 2010-015-503
Claimant(s): KEVIN BRYANT
Claimant short name: BRYANT
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112740
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Kevin Bryant, Pro Se
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Kent Sprotbery, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 21, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, a pro se inmate, seeks damages for medical malpractice. Trial of the instant claim occurred on October 21, 2009.

In his claim the claimant alleges that on June 13, 2005 while he was an inmate at Great Meadow Correctional Facility, he reported to the infirmary experiencing respiratory difficulties. Claimant was examined by an individual identified as P.A. Nesmith. He explained to Mr. Nesmith that he suffered from asthma, that he was having difficulty breathing and that he required an asthma pump. Mr. Nesmith did not prescribe an asthma pump on June 13, 2005 and approximately two weeks later, on July 1, 2005 the claimant suffered an asthma attack and was hospitalized for four days. On July 8, 2005 the claimant was issued an asthma pump. Paragraph 7 of the claim alleges the following:

"7. As a licensed doctor, PA. Nesmith acted in a negligent, incompetent, and careless manner in his treatment of Claimant, by failing to treat Claimant in a medically professional and necessary manner, according to proper medical standards."

At trial, Mr. Bryant testified that he has been an asthmatic all of his life. On June 13, 2005 he was experiencing asthma symptoms and reported to the infirmary in order to obtain an asthma pump. Claimant was seen at the infirmary by physician assistant Nesmith who placed a stethoscope on the claimant's chest and then, allegedly stated, "it doesn't sound like you have asthma to me". The claimant informed Mr. Nesmith that he had been a life-long asthmatic, that he was experiencing asthma symptoms which required that he be prescribed an asthma pump. Mr. Nesmith then exited the room without providing the claimant an asthma pump.

The claimant returned to the infirmary the following day seeking an appointment with a physician. The claimant was not seen by a physician that day but was advised to address his concerns at a doctor's appointment previously scheduled for July 8, 2005. Mr. Bryant continued to experience asthma symptoms, particularly late at night, and suffered an asthma attack on July 1, 2005.

On cross-examination the claimant restated his prior testimony on direct examination regarding his interaction with Mr. Nesmith and stated that his purpose in reporting to the infirmary on June 13, 2005 was to obtain an asthma pump. Claimant testified that he had used such a device previously when his asthma became symptomatic. On July 8, 2005 the claimant advised a physician, at an appointment previously scheduled with regard to another matter, that he had suffered an asthma attack and requested, and was provided, an asthma pump.

The defendant called Fischer "Ted" Nesmith as a witness at trial. Mr. Nesmith testified that in June, 2005 he was employed as a physician assistant at Great Meadow Correctional Facility. Exhibit A, an entry in the claimant's ambulatory health record dated June 13, 2005, was received in evidence. The document reflects that the claimant complained of "vague? 'asthma' last couple of nights" and "[h]ad 'asthma' in past - no med for 'several years'". The document notes that the claimant was in no acute distress, looked well. An examination of the claimant's ears, nose and throat were negative and his lungs were clear. The diagnosis portion of the notes indicates: "no evidence of asthma". No medications were dispensed and the claimant was advised, according to Mr. Nesmith to "recheck as necessary".

Mr. Nesmith testified that Albuterol is a prescription strength bronchodilator used in the treatment of asthma. He described Albuterol as a standard medication used in the treatment of asthma but also stated "you have to make sure the patient has asthma because it does have serious side effects . . . and can be abused". According to Mr. Nesmith, Albuterol is known to be abused within the prison system due to its effects which "jack you up". In addition to the potential for abuse, the medication increases an individual's heart rate and can lead to cardiac arrest. The witness concluded his testimony by stating the claimant had only complained of "vague" symptoms of asthma, had not been on medication for several years, was not in acute distress and his lungs were clear. As a result, there was no medical reason to prescribe medications for the claimant as there was "no evidence at all of asthma".

On cross-examination Mr. Nesmith testified that while he did not recall whether claimant's medical records reflected the fact that he was asthmatic "there has to be an indication to give a prescribed medication".

To establish a prima facie case of liability in a medical malpractice action, the claimant "was required to prove, through a medical expert, that [the defendant] breached the standard for good and acceptable care in the locality where the treatment occurred and that this breach was the proximate cause of [his] injury" (Bracci v Hopper, 274 AD2d 865 [2000]; see also Spensieri v Lasky, 94 NY2d 231 [1999]; Morgan v State of New York, 40 AD2d 891 [1972], affd 34 NY2d 709 [1974], cert denied 419 US 1013 [1974]); Berger v Becker, 272 AD2d 565 [2000]; Perrone v Grover, 272 AD2d 312 [2000]; Gibson v D'Amico, 97 AD2d 905 [1983], lv denied 61 NY2d 603 [1984]).

" 'Where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical testimony is a required element of a prima facie case' " (Myers v State of New York, 46 AD3d 1030, 1031 [2007], quoting Tatta v State of New York, 19 AD3d 817, 818 [2005], lv denied 5 NY3d 712 [2005]). As claimant failed to present expert testimony of a deviation from the appropriate standard of medical care his claim must be dismissed.

The claim is dismissed. Let judgment be entered accordingly.

January 21, 2010

Saratoga Springs, New York


Judge of the Court of Claims