New York State Court of Claims

New York State Court of Claims
GREEN v. STATE OF NEW YORK, # 2020-015-020, Claim No. 127056, 128214


Following remote video trial of pro se litigant's claim for medical malpractice and negligence by the Department of Corrections and Community Supervision in the treatment of his diabetes, claim was dismissed as the medical proof and testimony did not support the claim and no expert witness testimony was presented.

Case information

UID: 2020-015-020
Claimant(s): SHAWN GREEN
Claimant short name: GREEN
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127056, 128214
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Shawn Green, Pro Se
Defendant's attorney: Honorable Letitia James, Attorney General
By: Christina Calabrese, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 31, 2020
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, a pro se inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for medical malpractice/negligence arising from DOCCS' alleged failure to properly administer certain prescribed medications for the treatment of his diabetes mellitus.(1)

Trial of this matter was conducted by remote video-conference on November 22, 2019.

Claimant seeks damages for two periods during which he allegedly received improper treatment of his diabetes mellitus at Great Meadow. Both incidents allegedly occurred while the claimant was being temporarily housed at Great Meadow for medical appointments. The first period (claim No. 127056) was from September 18, 2015 through September 29, 2015, and the second period (claim No. 128214) was from April 5, 2016 through April 19, 2016. Claimant testified that while he was housed at Upstate Correctional Facility he had been prescribed a treatment regimen in accordance with a physician's order of August 6, 2015. However, soon after his arrival at Great Meadow on September 18, 2015 Physician's Assistant Ted Nesmith reduced the number of daily finger stick tests from three to one and reduced his daily dosage of insulin by 75%. As a result, claimant suffered blurred vision, dizziness and frequent urination during his entire stay at Great Meadow. Claimant testified that he complained daily about his condition but nothing was done.

Review of claimant's Ambulatory Health Record for this period (Exhibit 1) reflects that on August 6, 2015 a treatment regimen of Lantus and insulin on a sliding scale were prescribed with Ensure to be given each evening. On September 21, 2015, Dr. Leinung saw the claimant in consultation and set forth a regimen of treatment that included 12 units of Lantus and insulin on a sliding scale. On September 23, 2015 the records reflect that the claimant expressed concern that he was not getting enough insulin. On September 24, 2015, claimant's blood sugar level was reportedly high, the dosage of Lantus was doubled, and the sliding scale of insulin increased. The Treatment and Medication Record for the period in which claimant was temporarily housed at Great Meadow has not been provided.

With respect to the second period during which he alleges he was improperly administered medication at Great Meadow -- April 5, 2016 through April 19, 2016 -- claimant testified that he departed Upstate Correctional Facility for an appointment with a gastrointerologist vis-a-vis Great Meadow on April 4, 2016. On April 5, 2016 claimant was seen by Physician's Assistant Nesmith who reduced the frequency of his finger stick testing and the dosage of his insulin by 75%. Claimant testified that upon returning to Downstate Correctional Facility on April 19, 2016 he received the urgent care he needed to regulate his condition.

On cross-examination, claimant reaffirmed that the treatment provided at Great Meadow during the periods set forth as the basis for both claims deviated from the treatment plan previously prescribed.

Ted Nesmith, a Physician's Assistant employed by DOCCS, testified that although both the September 18, 2015 and April 11, 2016 Ambulatory Health Records contain his handwriting, he has no recollection of the events forming the basis of this lawsuit. Mr. Nesmith testified that his duties include diagnosing and treating common medical conditions and he identified Exhibit 6 as referring to the various duties of a Physician's Assistant. Mr. Nesmith agreed that it is common for inmates scheduled for medical appointments at Coxsackie Correctional Facility to be brought to Great Meadow temporarily. Reviewing Exhibits 2 and 12, Mr. Nesmith testified that claimant was housed at Great Meadow for both his September 2015 and April 2016 medical appointments. Mr. Nesmith testified that the treatment reflected in the medical record of March 8, 2016 from Upstate Correctional Facility -- 12 units of Lantus with 4 units of regular insulin 3 times per day with an additional 2 units if claimant's blood sugar is over 200 -- was the same medication dosage he prescribed for the claimant at Great Meadow. Mr. Nesmith agreed that it is common knowledge that a patient's glucose level will increase or decrease if the treatment rendered is not proper. Mr. Nesmith also agreed that diabetics require proper treatment to avoid hyperglycemia or hypoglycemia and identified Exhibit 11 as a medication treatment record. Possible complications of the disease, according to Mr. Nesmith, include deteriorating eyesight, heart and circulatory problems.

On cross-examination, Mr. Nesmith testified that on September 18, 2015 claimant was examined, a diabetic plan was established, and claimant was continued on his previously prescribed medications -- 12 units of Lantus and insulin. Claimant was again seen by Mr. Nesmith on April 5, 2016 at which time his previously prescribed medications were continued. On redirect examination Mr. Nesmith stated he was unaware claimant's glucose levels were high each day he was housed at Great Meadow but testified he did not "manage"(2) his case. Mr. Nesmith reviewed Directive 4918 entitled Inmate Healthcare During Transfer (Exhibit 6) and testified that although it is not "standard policy" to continue a patient's healthcare during a temporary transfer, medical staff review the medical records to assure a continuity of care in accordance with the medical directive.

The State has a fundamental duty to provide adequate medical care to inmates in its prisons without undue delay (Auger v State of New York, 263 AD2d 929 [3d Dept 1999]; Kagan v State of New York, 221 AD2d 7 [2d Dept 1996]). A breach of this duty has been defined in terms of both negligence and malpractice (Lowe v State of New York, 35 AD3d 1281, 1282 [4th Dept 2006]). "Conduct may be deemed malpractice, rather than negligence, when it 'constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician' " (Scott v Uljanov, 74 NY2d 673, 674-675 [1989]; Bleiler v Bodnar, 65 NY2d 65, 72 [1985]). Where the claimant's allegations relate entirely to the professional skill and judgment of his treating professionals, a medical malpractice cause of action is alleged (Maki v Bassett Healthcare, 85 AD3d 1366 [3d Dept 2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]). To establish a prima facie case of medical malpractice the claimant is "required to prove, through a medical expert, that [the defendant] breached the standard for good and acceptable care in the locality where the treatment occurred and that [this] breach was the proximate cause of [his] injury" (Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]; see also Morgan v State of New York, 40 AD2d 891 [3d Dept 1972], affd 34 NY2d 709 [1974], cert denied 419 US 1013 [1974]); Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]; Berger v Becker, 272 AD2d 565 [2d Dept 2000]; Perrone v Grover, 272 AD2d 312 [2d Dept 2000]). Where only nondiscretionary medical protocols are alleged to have been breached, a cause of action for ministerial neglect is stated (Kagan, 221 AD2d at 10-11, citing Public Officers Law 73 [1] [d]).(3) Under either theory, " 'where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is required to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to [the] claimant's injuries' " (DeMaille v State of New York, 166 AD3d 1405, 1406-1407 [3d Dept 2018], quoting Wood v State of New York, 45 AD3d 1198, 1198 [2007], see also Davis v State of New York, 151 AD3d 1411 [3d Dept 2017]; Knight v State of New York, 127 AD3d 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 [2015]; Myers v State of New York, 46 AD3d 1030, 1031 [3d Dept 2007]; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]; Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]). Here, claimant failed to demonstrate a deviation from the applicable standard of medical care or that any such deviation was a proximate cause of his pain and suffering (see DeMaille, 166 AD3d at 1407).

With respect to the claim of inappropriate medical treatment at Great Meadow in September 2015, review of the claimant's trial exhibits reflects the establishment of a treatment plan at Upstate Correctional Facility on August 6, 2015, which is reiterated in Great Meadow's Ambulatory Health Record of September 18, 2015 (Exhibit 1). He was seen by Dr. Leinung at the Coxsackie Regional Medical Unit on September 21, 2015, following which Dr. Leinung recommended a new treatment regimen (Exhibit 2). The Ambulatory Health Record of September 23, 2015 reflects claimant's concerns regarding the sufficiency of his medication, which was increased on September 24, 2015 according to the Ambulatory Health Record. The medication records reflecting the daily administration of medications at Great Meadow were not provided. Claimant was described in the request for a consultation dated August 19, 2015 as a "poorly controlled diabetic type 2" (Exhibit 2). A diabetic treatment plan was prescribed for him at Upstate Correctional Facility which included 12 units of Lantus and insulin on a sliding scale. Physician Assistant Nesmith testified that he continued the treatment program established at Upstate Correctional Facility, however, as indicated previously, the treatment records indicate that claimant's diabetes medication was increased on September 24, 2015. In the Court's view, neither the record evidence nor the testimony establish the defendant was negligent in its treatment of claimant's diabetes at Great Meadow in September 2015. The medical records are incomplete and in the absence of expert medical testimony or proof regarding the appropriate standard of care and the defendant's deviation therefrom, the Court is unable to conclude defendant was negligent or that its negligence was a proximate cause of claimant's alleged injuries.

Claimant's proof is similarly deficient with respect to his claim of medical malpractice at Great Meadow in April 2016. Although a treatment regimen is set forth by a Physician's Assistant at Upstate Correctional Facility on March 8, 2016, the records fail to demonstrate that the plan was not followed or that any change in the plan was unwarranted. In sum, claimant failed to establish that a deviation from the applicable standard of medical care caused or contributed to his injuries. As a result, defendant's motion to dismiss the claims is granted.

Based on the foregoing, claim numbers 127056 and 128214 are both dismissed.

Let judgments be entered accordingly.

January 31, 2020

Saratoga Springs, New York


Judge of the Court of Claims

1. Inasmuch as claim numbers 127056 and 128214 both allege medical malpractice/negligence arising from certain medical treatment provided at Great Meadow Correctional Facility (Great Meadow) for claimant's diabetes, these claims have been joined for trial.


Quotes are taken from the audio transcript of the trial unless otherwise noted.

3. Public Officers Law 73 (1) (d) defines "ministerial matter" as "an administrative act carried out in a prescribed manner not allowing for substantial personal discretion."