New York State Court of Claims

New York State Court of Claims
MODESTO v. THE STATE OF NEW YORK, # 2010-016-022, Claim No. 111327


Case information

UID: 2010-016-022
Claimant short name: MODESTO
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 111327
Motion number(s):
Cross-motion number(s):
Judge: Alan C. Marin
Claimant's attorney: Arturo Modesto, Pro Se
Defendant's attorney: Andrew M. Cuomo, Attorney General
By: James E. Shoemaker, Esq., AAG
Third-party defendant's attorney:
Signature date: March 18, 2010
City: New York
Official citation:
Appellate results:
See also (multicaptioned case)


This decision follows the trial of the claim of Arturo Modesto. In his claim, Mr. Modesto alleges that he was not provided with proper medical treatment after he fell and injured his ankle while incarcerated at Woodbourne Correctional Facility on June 10, 2005.

Claimant testified that at the time of the incident, he was a porter at Woodbourne, and was sweeping in the "small yard," when he stepped on a crack and his foot was twisted. He fell to the ground, couldn't get up and called to an officer for help. He then went to the clinic, where a nurse told him to put ice on the ankle and said it was just swollen. According to claimant, he went back to his housing unit and did everything he had been told to do.

Modesto recalled that several days went by and the swelling still had not gone down, and he believed that he had a fracture. Claimant testified that he repeatedly went to the clinic, telling them over and over that his foot was broken, but they did not pay attention, and kept telling him that he should just raise his foot and put ice on it. He added that he was given a pass so that he could get ice three times a day.

Claimant testified that he filed a grievance, after which an officer told him he was going to get treatment, but he never received it, so he kept going to sick call. According to claimant, after he sued, they started to call him down for treatment. He said that at some point, he was sent out for an MRI, and he maintained that that is when it was discovered that his foot was "broken," after which they started procedures to "get it fixed." Modesto said that since the surgery, he has been unable to walk for more than an hour at a time, because his foot gets tired and he has to sit down and rest. He stated that he doesn't currently use a cane, but always has to lean on something to help him walk. He added that when he lies down and puts his heel on the bed, it hurts a lot and he has to put a pillow under it so that he doesn't feel the mattress. Finally, claimant testified that before his injury he was walking perfectly, but now, he walks with pain.

* * *

Defendant called Department of Correctional Services physician Mervat Makram, M.D. Dr. Makram, who had reviewed claimant's medical records, testified at length to his treatment following his accident. She said that contrary to claimant's testimony, his medical records indicate that he twisted his left ankle while playing basketball, not while working as a porter. She stated that he reported to emergency sick call that day at 1:30 p.m., where he was given ice and pain medication, and his foot was wrapped in an ACE bandage. He was told to elevate the foot and was given a slip for no programs. No x-rays were ordered at that time. The nurse who evaluated him noted that the ankle was slightly swollen, that he was weight bearing, but with some pain, and had full range of movement of the ankle.

According to Dr. Makram, claimant was next seen on June 13 when he reported to sick call complaining of pain in the ankle. At that time, an x-ray was ordered and he was advised to keep elevating the foot and to continue with the pain medication. The x-ray was taken on June 14 and claimant was next seen on June 20, at which time the x-ray report was not yet back. During that visit, he was examined, given a pain medication refill and his ankle was wrapped again with an ACE bandage.

Dr. Makram said that she reviewed the x-ray report on June 24. It stated that there was no acute bone injury, which means no broken bones or fractures. There was an indication of old trauma to the same ankle. The report also indicated that claimant had degenerative left ankle joint disease, which means that he has some kind of arthritis of the left ankle, which takes years to show up as inflammation on the x-ray. The doctor said that the MRI showed that with regard to his new injury from the twisted ankle, the only finding was soft tissue swelling.

Dr. Makram testified that the results of the x-ray were explained in detail to claimant by a nurse on July 5, 2005. At that time, claimant was advised not to participate in contact sports, and again an ACE bandage was applied. In addition, he was told to use warm moist compresses to decrease swelling, and to continue elevating the foot and using pain medication. He was also told to increase his fluid intake, and was given an analgesic balm to apply topically.

The doctor said that claimant was next seen on July 11, when he reported to sick call. The nurse who saw him noted some swelling. She checked his range of motion and found that he had an active range of motion and his skin was warm and the color of his foot was normal. The nurse advised him to continue with the analgesic balm and she gave him pain and anti-inflammation medication. He was also given an ankle brace to provide more support to the ankle. Claimant's gait was steady and he seemed to be walking normally at that time, so he was not given a cane or crutches.

Modesto was seen again on July 14, 2005, and when he complained that his ankle was swollen, he was given an ankle brace made of a stronger material. He was told to apply ice and continue with the anti-inflammatory medication. When claimant complained that the pain medication didn't help much, the nurse administrator said she would refer his file to the doctor to get a stronger dosage.

On July 29, 2005, Dr. Makram saw claimant and he was still complaining of pain and swelling. During the visit, she reviewed claimant's x-ray again and discussed the results with him, explaining that he had an old injury and did not have a new injury, i.e., there was no broken bone. She told him to continue wearing the ankle brace and to continue with the pain medication. When she examined him, she noted that she heard some clicking in his ankle when she moved it. She explained that with clicking, there is a possibility of a ligament injury, but not a bone injury. Because of this, she decided to order an MRI.

The doctor explained that she had to apply for the MRI to be approved and after approval was obtained, the MRI was conducted on August 17, 2005. The MRI report was dated August 19, 2005 and she reviewed it on August 24, 2005. The report stated that claimant had some resolved hematoma in the area of the heel, which means subcutaneous bleeding in the soft tissue of the heel. The MRI report confirmed that there was no fracture of the bone or dislocation of the ankle. The report indicated that there might be a torn ligament, but it could not be clearly seen. There was also the impression of a bruise of the talus.

The doctor explained that after reading the report, she decided to refer claimant to an orthopedic surgeon to confirm or exclude any ligament injury. In order for claimant to see an orthopedist, she needed to seek approval, which was ultimately granted, and claimant first saw an orthopedist on October 20, 2005.

According to Dr. Makram, the orthopedist noted that the MRI had indicated the possibility of a ligament tear, but that that was not consistent with his examination, so the orthopedist's final conclusion was simply a left ankle sprain, with no evidence of fracture, broken bones or ligament tear. He recommended that claimant be given physical therapy to strengthen and stabilize the ankle. He also wanted another x-ray, and noted that a left ankle arthroscopy should be considered if the symptoms continued.

On October 26, claimant began seeing a physical therapist, and had multiple sessions. At some point, it was determined that claimant should have surgery and this was done on March 23, 2006 at Mt. Vernon hospital, where claimant had an arthroscopy of the left ankle. Dr. Makram characterized the surgery as successful and said that thereafter, all recommendations for physical therapy were followed, with claimant ultimately receiving 22 sessions. The doctor further testified that claimant was eventually discharged from orthopedic care.

Finally, Dr. Makram testified that to a reasonable degree of medical certainty, there was no deviation in the standard of care provided to claimant.

* * *

It is settled law that the State owes a duty to its inmates to provide them with adequate medical care. Kagan v State of New York, 221 AD2d 7 (2d Dept 1996). But in order to prevail here, claimant would be required to present (or elicit) testimony from a physician that there was a deviation from accepted standards of medical care in connection with such treatment, which proximately caused him injury. See, e.g., Lyons v McCauley, 252 AD2d 516 (2d Dept 1998), lv denied 92 NY2d 814 (1998). Claimant failed to present any such testimony, and therefore, claim no. 111327 is dismissed.


March 18, 2010

New York, New York

Alan C. Marin

Judge of the Court of Claims