New York State Court of Claims

New York State Court of Claims
THOMPSON v. THE STATE OF NEW YORK, # 2019-059-040, Claim No. 129181


Case information

UID: 2019-059-040
Claimant short name: THOMPSON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129181
Motion number(s):
Cross-motion number(s):
Claimant's attorney: MICHAEL E. THOMPSON, pro se
By: Dorothy M. Keogh, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 6, 2019
City: Central Islip
Official citation:
Appellate results:
See also (multicaptioned case)


This is a claim by Michael E. Thompson ("Thompson" or "Claimant"), an inmate proceeding pro se, seeking to hold the defendant, the State of New York ("Defendant" or "the State") liable for a medical negligence for the failure to treat his collapsed lung while he was an inmate at the Sing Sing Correctional Facility ("Sing Sing"). Specifically, at trial Thompson alleged that the medical staff at Sing Sing committed medical negligence by failing to diagnose and treat his collapsed lung, including the four day delay in reading the x-ray which would have revealed the condition which required emergency surgery. Claimant alleges damages for his pain and suffering, psychological harm and that Defendant's negligence caused him to contract "bullous lung disease." He also claims that he is entitled to damages for future medical expenses. A trial of Thompson's claim was conducted at Sing Sing via video conference on November 7, 2019.

Claimant testified at trial that on the morning of April 4, 2016 he was brought to the Sing Sing medical facility by wheelchair complaining of chest pain and tightening, coughing the preceding week, fevers, aches, as well as inability to breathe. He was treated for a fever and an acute upper respiratory infection. His lungs were x-rayed and a CT scan of the area was conducted that same day, April 4, 2016. He was discharged from the Sing Sing medical facility on April 7, despite his protests that he was still experiencing severe chest pains and could not breathe. The x-ray had not yet been read.

Thompson returned to the Sing Sing medical facility later on April 7, complaining of severe chest pain and breathing difficulty and was told by the nurse that he was "wasting her time." She had him removed by security staff and he was walked back to his cell on the "top floor." That night he experienced chest pains and sweating. The following morning, April 8, he was walked back by a correction officer who observed his condition. Thompson was provided a nebulizer and required to walk back up to the same "top floor" housing block. Later that day his x-ray finally was read and Claimant was ordered to walk back down to the medical facility. The x-ray, which had been unread for four days, revealed a sixty percent lung collapse. He then was taken via van to Montefiore Mount Vernon Hospital ("Montifiore") at 8:00 p.m. where emergency thoracic surgery was performed.

Thompson remained at Montefiore until April 21, 2016. His medical record indicates a diagnosis of "spontaneous secondary pneumothorax secondly [sic] to bullous lung disease etiology unknown." The medical record also indicated a "high likelihood of conservative care failure" at Sing Sing.

The State denied none of Thompson's allegations and produced no witnesses. Rather, Defendant moved to dismiss alleging that Claimant had not provided medical testimony to show a deviation from accepted medical standards, as counsel claimed is necessary to state a claim for medical negligence.

"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Garofolo v State of New York, 135 AD3d 1108 [3d Dept 2016], quoting Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied, 76 NY2d 701 [1990]). In determining whether such care was provided, there is a subtle distinction between medical negligence and medical malpractice (Livingston v State of New York, UID No. 2014-044-009 [Ct Cl, Schaewe, J., Oct. 14, 2014]). The Court of Appeals has recognized that although a medical provider "in a general sense is always furnishing medical care to patients . . . not every act of negligence toward a patient would be medical malpractice" (Bleiler v Bodnar, 65 NY2d 65, 73 [1985]). "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts" (Fragosa v Haider, 17 AD3d 526, 527 [2d Dept 2005] ([internal quotation marks and citations omitted]).

"Ordinarily, expert medical opinion evidence, based on suitable hypotheses, is required, when the subject-matter to be inquired about is presumed not to be within common knowledge and experience and when legal inference predominates over statement of fact, to furnish the basis for a determination by a jury of unskillful practice and medical treatment by physicians; but where the matters are within the experience and observation of the ordinary jurymen from which they may draw their own conclusions and the facts are of such a nature as to require no special knowledge or skill, the opinion of experts is unnecessary." (Meiselman v Crown Hgts. Hosp., Inc., 285 NY 389, 396 [1941].

Here, it is within the "experience and observation" of the Court, sitting as the trier of fact, that the failure to read the chest x-ray for four days constituted medical negligence which caused four days of pain and suffering. (see, Reeder v City of New York, 23 Misc 2d 311 [NY County, 1960]). However, no evidence was presented which would lead the Court to conclude that Defendant's medical negligence was the proximate cause of "bullous lung disease" or any permanent injury.

" 'An award for pain and suffering is inherently a subjective inquiry, not subject to precise quantification, and generally presents a question of fact' " (Johnson v State of New York, UID No. 2014-044-002 [Ct Cl, Schaewe, J., Jan. 13, 2014] [citations omitted]). "The reasonableness of compensation must be measured against relevant precedent of comparable cases" (Garcia v CPS 1 Realty, LP, 164 AD3d 656, 658 [2d Dept 2018] [internal quotation marks and citations omitted]). "Although prior damage awards in cases involving similar injuries are not binding upon the courts, they guide and enlighten them with respect to determining whether a verdict in a given case constitutes reasonable compensation" Id.

There are no "relevant precedent[s] in the Court of Claims awarding damages for pain and suffering caused by delay in treating a collapsed lung and failure to read an x-ray. However, analogies can be drawn to Court of Claims trial decisions awarding damages for pain and suffering in other circumstances (see Williams v State of New York, UID No. 2009-044-016 [Ct Cl Schaewe, J., Aug. 26, 2009] [$900 for past pain and suffering experienced over a twelve-hour period to treat a badly infected thumb or to take inmate's temperature before finally transporting him to a hospital for emergency treatment]; Morawski v State of New York, UID No. 2019-032-502 [Ct Cl Hard, J., April 15, 2019] [$30,000 for past pain and suffering endured for four days resulting from the prison pharmacist's negligent administration of incorrect medication despite clear makings on the proper capsules and medical malpractice]). Here, Claimant experienced severe pain resulting from a serious life threatening condition and was required to walk multiple flights of stairs in that condition. A lay person would recognize that Claimant's pain could have been alleviated had an x-ray been read in a timely manner and required treatment provided. Since there was no evidence of permanent injury or the continued need for medical care, no damages are awarded for those claims.

Accordingly, Claimant is awarded $15,000 in damages for the pain and suffering he endured from April 4 through April 8, 2016 due to Defendant's medical negligence. In addition, Claimant is entitled to an award of the actual amount of any fee paid to file his claim as a taxable disbursement pursuant to Court of Claims Act 11-a(2). All motions on which the Court reserved decision at trial are hereby denied.

The Clerk is directed to enter judgment accordingly.

December 6, 2019

Central Islip, New York


Judge of the Court of Claims