New York State Court of Claims

New York State Court of Claims
TULLOCH v. THE STATE OF NEW YORK, # 2010-016-064, Claim No. 107891

Synopsis

Pro se claim alleging medical malpractice at Sullivan Correctional Facility was dismissed after trial.

Case information

UID: 2010-016-064
Claimant(s): ALBERT TULLOCH
Claimant short name: TULLOCH
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 107891
Motion number(s):
Cross-motion number(s):
Judge: Alan C. Marin
Claimant's attorney: Albert Tulloch, Pro Se
Defendant's attorney: Andrew M. Cuomo, Attorney General
By: Roberto Barbosa, AAG
Third-party defendant's attorney:
Signature date: October 27, 2010
City: New York
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This decision follows the trial of the claim of Albert Tulloch. In his claim, Mr. Tulloch alleges that on June 29, 2001, while he was incarcerated at Sullivan Correctional Facility, Department of Correctional Services ("DOCS") physician Wladyslaw Sidorowicz committed malpractice when he "cut a cyst on [claimant's] left hand, without informed consent . . ."

At trial, claimant testified that on June 29, 2001, Dr. Sidorowicz used a metal object to "squeeze out" the cyst on his hand. Tulloch maintained that he was not treated in a professional manner and that after the procedure, he was in pain for six to eight months until he was finally sent for outside treatment. He testified that as of the time of trial, he was still in some pain. Dr. Wladyslaw Sidorowicz testified that he first saw claimant with respect to the cyst in March of 2001 (although the medical records place this date as April 30, 2001), at which time claimant had had the cyst for at least 3 years. The doctor testified that the cyst was not removed at that time because DOCS considers cysts to be cosmetic, and it is thus difficult to get the Department's permission to remove a cyst surgically. He explained that cysts such as this are usually not painful, but can be, although this is a subjective matter which cannot be confirmed. Dr. Sidorowicz recalled that Tulloch did complain of pain at that time and said that the cyst interfered with his work as a cook in the facility kitchen. Accordingly, the doctor sought permission for surgical removal, which he obtained three months later. In the meanwhile, he attempted to treat claimant with other methods such as medication and the June 29, 2001 procedure referred to in the claim. Dr. Sidorowicz explained that on that date, he tried to puncture the cyst with a needle or the tip of a scalpel, but he was unable to remove it using that method.

Dr. Sidorowicz said that thereafter, he obtained consent for outside surgery, which was scheduled in September of 2001 and, according to the records, performed on December 12, 2001 at Albany Medical Center. See claimant's exhibit 2. Dr. Sidorowicz testified that after the surgery was completed, the removed cyst was sent to a pathology lab which identified it as a painless follicular cyst. According to Dr. Sidorowicz, after the surgery, claimant made no more complaints about his hand.

Finally, Dr. Sidorowicz testified that there was no deviation form accepted medical practice in connection with the June 29, 2001 procedure that he performed.

* * *

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 testimony from a physician that there was a deviation from accepted standards of medical care in connection with the June 29, 2001 procedure, 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. As to any allegation of lack of informed consent, this cause of action was not developed at trial by claimant.

Accordingly, claim no. 107891 is dismissed. LET JUDGMENT BE ENTERED ACCORDINGLY.

October 27, 2010

New York, New York

Alan C. Marin

Judge of the Court of Claims