New York State Court of Claims

New York State Court of Claims
GREEN v. STATE OF NEW YORK, # 2021-058-002, Claim No. 129291


Claim alleging medical negligence/malpractice dismissed after trial; Claimant failed to present expert testimony establishing the effect, if any, of a missed dose or doses of Levaquin, an antibiotic.

Case information

UID: 2021-058-002
Claimant(s): RUSSELL 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): 129291
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Russell Green, Pro Se
Defendant's attorney: Hon. Letitia James, New York State Attorney General
By: Anthony Rotondi, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 21, 2021
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Pro se Claimant Russell Green seeks damages for injuries sustained while incarcerated at Bare Hill Correctional Facility (BHCF). Claimant alleges that following a "circumcision and prostate biopsy"(1) at Adirondack Medical Center (AMC), an AMC physician prescribed him an antibiotic to be administered over a four-day period once he returned to BHCF. Claimant further alleges BHCF did not administer nor did he receive this antibiotic. As a result, Claimant suffered injuries consisting of a high-grade fever, abdominal pain, rigors and chills, systemic infection, urinary tract infection, sepsis, and elevated white blood cell counts, which resulted in a further hospitalization.(2)

The trial of this Claim was conducted virtually on January 15, 2021 upon stipulation of the parties.(3) Claimant testified on his own behalf and called no other witnesses. Claimant offered five exhibits all of which were received into evidence. Exhibits 1, 2, and the first three pages of Exhibit 5 were received by stipulation of the parties. Exhibits 3 and 4 and the remainder of Exhibit 5 were received into evidence over Defendant's objection. Defendant called no witnesses and did not introduce any exhibits. At the conclusion of trial, Defendant moved to dismiss the Claim; Claimant opposed; and the Court reserved decision.

After considering the testimony of the single witness at trial and evidence received and reviewing the applicable law and arguments made by the parties, the Court grants Defendant's motion to dismiss made at the conclusion of trial and dismisses the Claim.


Claimant was an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS) at BHCF. Claimant testified that on November 28, 2016, he underwent a prostate biopsy along with an adult circumcision at AMC(4) and was transferred to Upstate Correctional Facility for an overnight stay before returning to BHCR on November 29, 2016. Claimant explained that upon discharge from AMC, he was to receive an antibiotic, Levaquin, for four days, which is evidenced in Exhibit 5.(5) Claimant stated he did not receive Levaquin from DOCCS after his release from AMC. Claimant further testified that as a result of not receiving this antibiotic, he suffered from fever, body aches, malaise, abdominal pain, rigors, and chills.(6) On December 1, 2016 Claimant went to the BHCF clinic where he was given the antibiotic, Ciprofloxacin;(7) and thereafter, returned to his cell. Later that same evening, Claimant returned to the BHCF clinic with an elevated temperature and was sent to AMC again.(8) Evidence submitted at trial indicate Claimant has a "complicated medical history,"(9) which includes, and may not be limited to, Type 2 diabetes mellitus, hepatitis B, hypertension, anorexia, smoking, phimosis, and "post chemo for chronic lymphocytic leukemia in 2012 and 2015."(10)


It is well settled "that the State owes a duty to provide medical care and treatment to its prisoners, which duty has been defined in terms of both negligence and medical malpractice" (Kagan v State of New York, 221 AD2d 7, 16 [2d Dept 1996] [internal citations omitted]; see Lowe v State of New York, 35 AD3d 1281, 1282 [4th Dept 2006]; Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990]). "Under both theories, however, [the] claimant must establish that the negligence of the State or the State's deviation from the accepted standard of care was the proximate cause of the claimant's injuries" (Lowe, 35 AD3d at 1282; see Knight v State of New York, 127 AD3d 1435, 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 [2015]). Moreover, regardless of "[w]hether the claim is grounded in negligence or medical malpractice, '[w]here 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'"(Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see Trottie v State of New York, 39 AD3d 1094, 1095 [3d Dept 2007]).

The effect on a patient in failing to be administered a prescribed drug other than pain medication is generally beyond the ordinary experience and knowledge of a layperson, and must usually be supported by expert medical testimony (see Duffen v State of New York, 245 AD2d 653, 653-654 [3d Dept 1997], lv denied 91 NY2d 810 [1998]; Hall v State of New York, UID No. 2012-038-114 [Ct Cl, DeBow, J., Dec. 21, 2012]).

The Court, as a lay person, is not knowledgeable as to the effects, if any, of a missed dose or doses of Levaquin, an antibiotic, or how long it would take for a missed dose or doses to result in any such effect, particularly as it pertains to this Claimant with a "complicated medical history."


Although evidence at trial indicated Claimant received an antibiotic on December 1, 2016, Claimant's uncontradicted testimony established that he was not provided the prescribed Levaquin from DOCCS following his discharge from AMC. Nevertheless, Claimant did not adduce any expert testimony as to how and/or what extent the missed dose or doses of Levaquin caused or contributed to his injuries and damages. Stated differently, Claimant has failed to make a prima facie showing as to the causal nexus between the missed dose(s) of Levaquin and his injuries.

Therefore, upon consideration of the testimony of Claimant, observing his demeanor while testifying as well as examining the documentary evidence received at trial and reviewing the applicable law, the Court grants Defendant's motion to dismiss made at the conclusion of trial and dismisses the Claim.

Accordingly, Claim Number 129291 is dismissed. Any and all other evidentiary rulings or motions upon which the Court may have previously reserved or which were not previously determined are hereby denied.


January 21, 2021

Albany, New York


Judge of the Court of Claims



Claim No. 129291 4.


2 id. 7, 9,




Court Exhibit 1.


4 see Ex 5, at 3-4



5 id.

at 1.


6 Ex 3, at 1-2; Ex 5, at



7 see Ex 1, at



8 see id. at 2



9 Ex 5, at 5



10 id. at 4; see id. at 5, Ex 3 at 1-2



11 Ex 5, at 5.