New York State Court of Claims

New York State Court of Claims
SMITH v. THE STATE OF NEW YORK, # 2015-041-502, Claim No. 107734


Claim alleging that claimant was exposed to second-hand smoke and received improper medical care while claimant was incarcerated at Clinton Correctional Facility is dismissed after trial; claimant failed offer expert medical testimony as to defendant's purported improper provision of medical care and exposure to second-hand smoke cause of action is barred by Public Health Law 1399-w.

Case information

UID: 2015-041-502
Claimant(s): JULIO I. SMITH
Claimant short name: SMITH
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 107734
Motion number(s):
Cross-motion number(s):
Claimant's attorney: JULIO I. SMITH
Pro Se
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Michael C. Rizzo, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 16, 2015
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Julio Smith (claimant) was an inmate at Clinton Correctional Facility (CCF) during the early part of 2003. He was admitted to the CCF hospital on February 21, 2003, for treatment of a high fever, where he remained for four days. Mr. Smith filed a claim on May 12, 2003, alleging acts and omissions of the facility's medical staff caused him to be exposed to second-hand smoke during his four-day hospital stay and that he had received improper medical care during his stay.

Trial of the claim was conducted on December 18, 2014. Claimant was the only trial witness. At trial, claimant essentially restated the allegations of his claim, adding additional allegations of continuing exposure to second-hand smoke while incarcerated and that he had received improperly prescribed medication and an incorrect inhaler.

At the close of claimant's case, defendant moved to dismiss the claim for failure to make a prima facie case founded in medical malpractice, and that no cause of action for exposure to second-hand smoke was viable. The Court reserved upon defendant's motion at trial and defendant rested without calling any witnesses.

It "is well settled that where the State engages in a proprietary function such as providing medical and psychiatric care, it is held to the same duty of care as private individuals and institutions engaged in the same activity" (Rattray v State of New York, 223 AD2d 356, 357 [1st Dept 1996]).

To sustain a cause of action for medical malpractice, a claimant must prove, generally through expert medical opinion testimony, two essential elements: (1) a deviation or departure from accepted practice, and (2) that such departure was a proximate cause of plaintiff's injury (Carter v Tana, 68 AD3d 1577, 1579 [3d Dept 2009]).

Defendant is required to exercise professional medical judgment within the range of accepted medical standards in its treatment of claimant. The law is clear that "neither a medical provider . . . nor the State or governmental subdivisions employing the medical provider, may be held liable for a mere error in professional judgment" (Ibguy v State of New York, 261 AD2d 510, [2d Dept 1999], lv denied 93 NY2d 816 [1999]; Sciarabba v State of New York, 182 AD2d 892, 893-894 [3d Dept 1992]).

Conclusory allegations of medical malpractice, unsupported by competent evidence establishing its essential elements, are insufficient to state a prima facie case. Through a medical expert, it must be shown that defendant deviated from the standard for good and acceptable care in the locality where the treatment occurred and that the deviation was the proximate cause of the injury (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]; Yamin v Baghel, 284 AD2d 778, 779 [3d Dept 2001]; Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]).

"Where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case" (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]).

The fact that claimant proceeded pro se does not excuse the need for expert medical opinion to demonstrate a deviation from the applicable standard of care (Duffen v State of New York, 245 AD2d 653, 653-654 [3d Dept 1997], lv denied 91 NY2d 810 [1998]).

With respect to the claim of exposure to second-hand smoke, Matter of Alamin v New York State Dept. of Correctional Servs. (241 AD2d 586, 587 [3d Dept 1997]), explains that "noncompliance with the smoking ban does not subject [defendant] to legal proceedings or liability (see, Public Health Law 1399-w)."

Claimant offered no expert medical proof of the established medical standard of care due him, no expert medical proof that defendant deviated from the standards of medical care due him, nor any expert medical proof that he suffered injury or damage as a result of defendant's medical treatment of him or due to his exposure to second-hand smoke.

The claimant failed to prove by a preponderance of the credible evidence that defendant was in any manner negligent, medically or otherwise, and further failed to prove by a preponderance of the credible evidence that he was damaged or injured.

The defendant's trial motion to dismiss upon which the Court earlier reserved is now granted. The claim is dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

January 16, 2015

Albany, New York


Judge of the Court of Claims