Pro se inmate claim of medical malpractice/ministerial neglect premised on alleged failure to notify of Hepatitis C diagnosis, causing later complications, dismissed after trial. Among other things no expert.
|Claimant short name:||HALL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||DABNEY HALL, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||March 10, 2010|
|See also (multicaptioned case)|
Dabney Hall alleges in his claim that defendant's agents failed to timely notify him of a positive hepatitis B and C test given on January 17, 1998 while in the custody of the New York State Department of Correctional Services [DOCS] at Green Haven Correctional Facility, and failed to thereafter provide him with adequate medical care. [Claim Number 113590, ¶2]. Trial of the matter was held on January 29, 2010.
Mr. Hall was the only witness to testify at the trial. He testified that in 1998 at "Arthurkill [Correctional Facility]" he was "diagnosed with hepatitis C"(1) , but claimed that it was not until February 2007, while at Southport Correctional Facility, that he was advised of the earlier diagnosis. At the time, he was undergoing treatment for colorectal cancer. He testified that he learned that from 2000 to 2007 he had been diagnosed with hepatitis C, but had neither been told of the diagnosis or treated for the illness.
Claimant submitted a request and report of consultation form dated December 12, 2007 signed by the consultant on January 7, 2008. [Exhibit 1]. The initial referral form indicates a prior finding of hepatitis C and B. [Id.]. The consultation report - which primarily concerns prior and current treatment related to claimant's cancers - also has a notation that claimant has a history of "hepatitis C." [Id.].
Claimant also submitted documents he described as the "blood test reports" from January 2007 with some attachments that indicated a positive hepatitis C result. [Exhibit 2]. An attached narrative dated February 9, 2007, apparently written by a consulting physician, seen because of claimant's "history of rectal cancer" and the need to "reestablish care with an oncologist" was included in the submission. [Id.]. The narrative includes a notation that claimant's
"records indicate that he has been diagnosed to be hepatitis C positive as well as hepatitis B positive. He is not currently undergoing therapy for the same." [Id.].
The narrative also provides that the claimant "is a relatively poor historian and no details are accompanying records available today." [Id].
Claimant testified that in 2003 "they found a tumor in my colon but never told me about the 'hep C'." When he learned that he had tested positive for "hep C", claimant testified that he "started thinking that when that colostomy was proposed [in 2003] maybe [he would have thought] differently about that."
Mr. Hall presented no other witnesses and no other evidence on his direct case.
On cross-examination, claimant was asked to review a portion of his certified medical record. [Exhibit A]. Noted therein is a letter from claimant dated December 4, 2006 asking for explanations about his "medical problems" including hepatitis B and C. [Ibid.]. Claimant, somewhat confusingly, said that "that was the point" that he had been aware of having hepatitis C and was looking for treatment. The record also contains his November 28, 2006 request for a blood test "to check on my hip (sic) C my blood count."[Ibid.]. There are notations throughout claimant's medical record noting positive tests for hepatitis B and C, including an April, 1998 ambulatory health record [AHR] note referencing the January 12, 1998 positive test, and an instruction for follow-up; notations in May, June, August, and September 1998, and throughout the succeeding years as well. [Ibid.]. Multiple medical issues are noted throughout the record - which spans the years 1998 through 2007 and includes notations made at different correctional facilities by different providers as well as outside providers - and many medications are prescribed. [Ibid.]. References to checking claimant's "viral load" for hepatitis C appear throughout the record, and charts of treatment and tests given are included throughout the time span. [Ibid.]. In August 2005 among his multiple discharge diagnoses from Albany Medical Center are "Hepatitis B and hepatitis C, stable." [Id.]. Past medical history, presumably taken in part from claimant, notes "Significant for hepatitis B and C, depression, colon cancer status post resection in 2003 with colostomy placement." [Id.].
The record also includes a notation on February 2, 2007 by medical personnel that claimant reported that he "just recent[ly] found out" that he was positive for hepatitis C, the writer notes discussing hepatitis C including risks and treatment options, and claimant is described as "asymptomatic [at] present." [Ibid.].
On cross-examination it was clear that claimant could become easily confused, and did not really know exactly when he became aware of a diagnosis that is infused throughout his medical history.
No other witnesses testified, and no other evidence was submitted.
Upon review of all the evidence, including listening to Mr. Hall testify and observing his demeanor as he did so, the Court finds that claimant has not established an adequate basis for the State's liability.
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 (3d Dept 1990), lv denied, 76 NY2d 701 (1990).
In a medical malpractice claim, the claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. He must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept 1976), lv denied 40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).
If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State's employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony. Coursen v New York Hospital-Cornell Med. Ctr., 114 AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for ministerial neglect if its employees fail to comply with an institution's own administrative procedures and protocols for dispensing medical care to inmates. Kagan v State of New York, 221 AD2d 7, 10 (2d Dept 1996).
In this case, only the testimony of the claimant has been presented in support of any claim of malpractice, together with records that were not explained by a medical expert. [See Exhibits 1, 2 and A]. No competent medical evidence was presented, through a treating physician or an expert witness whose opinion was based upon the available medical records, to support the allegation of medical malpractice. There is no medical evidence on any medical issue and thus no proof that accepted standards of care were not met. Accordingly, to the extent that this claim alleges a cause of action for medical malpractice it is dismissed.
Additionally, from this record there is no indication that the actions of medical caregivers amounted to simple negligence or ministerial neglect. Coursen v New York Hospital-Cornell Med. Ctr., supra; Kagan v State of New York, supra. Claimant has clearly suffered from some devastating medical conditions. These are noted throughout the medical records provided. Hepatitis, in its several forms, was tested for and treated it would seem throughout the period shown in the records, however even that conclusion is ill-supported in the absence of medical testimony. Nonetheless, and based upon claimant's clearly compromised recall of events, the Court does not credit his claim that he was never told that he was diagnosed with hepatitis C (a diagnosis that appears to have fluctuated in any event). To the extent the claim can be read to assert causes of action for negligence or ministerial neglect, the claim is also dismissed.
While the Court sympathizes with the claimant's suffering from multiple medical conditions, from the record here it seems that he has seen medical personnel with regularity, and their attempts to arrive at a working diagnosis have been constant. In reviewing the documents submitted, the Court notes again that the determinations called for - including any decision to consult or then take the advice of a specialist, as well as relaying medical alternatives to the patient - fall within the clinical judgment of medical providers. Accordingly, expert testimony would be required to establish whether such judgment was flawed.
Based on the foregoing, Claim Number 113590 is dismissed in its entirety.
Let judgment be entered accordingly.
March 10, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. All quotations are to audio recordings unless otherwise indicated.