Opinion
# 2018-029-090 Claim No. 129322
09-24-2018
LAVERN GRAHAM v. THE STATE OF NEW YORK
LAVERN GRAHAM, PRO SE BARBARA D. UNDERWOOD, ATTORNEY GENERAL By: Matthew H. Feinberg, Assistant Attorney General
Synopsis
After a video trial, the court granted defendant's motion to dismiss the pro se claim where claimant failed to establish a prima facie case of medical malpractice or medical negligence by staff at Bedford Hills Correctional Facility. Claimant did not offer testimony from a medical expert, or other expert evidence, to establish the standard of care or accepted practices of other medical professionals in the field.
Case information
| UID: | 2018-029-090 |
| Claimant(s): | LAVERN GRAHAM |
| Claimant short name: | GRAHAM |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129322 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | LAVERN GRAHAM, PRO SE |
| Defendant's attorney: | BARBARA D. UNDERWOOD, ATTORNEY GENERAL By: Matthew H. Feinberg, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 24, 2018 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim alleges that defendant's medical personnel were negligent and committed medical malpractice in delaying diagnosis and treatment, and in their treatment, of a ganglion cyst in claimant's right arm, resulting in permanent injury. A video trial of the pro se claim for negligence was held on August 22, 2018. Claimant testified on her own behalf and the court admitted 14 claimant's exhibits. Defendant did not present witnesses, and the court admitted two defense exhibits.
Claimant testified that in 2013, while incarcerated at Bedford Hills Correctional Facility, the doctor advised her that she had a cyst on her wrist. In 2014, she had a consult and the consultant ordered a procedure to remove the cyst, claimant alleged that order was ignored and nothing was done until 2016. She alleges she still has the cyst, which causes her pain, numbness and burning.
On cross-examination, claimant testified that she saw a specialist three or four times. She was being pressured to have surgery, and refused to see the doctor twice. Claimant submitted to two surgeries. She got one dose of pain medication after the first surgery, and she got two doses after the second surgery. From 2013 through 2016, she was in pain but did not receive pain medication or treatment.
Exhibits 1-4, 6 and 10 are letters from claimant to the Nurse Administrator, the Deputy Superintendent and To Whom It May Concern. Exhibits 5, 7-9 and 11-14 are uncertified copies of several pages from claimant's medical record. The court admitted, as Exhibit A, a certified copy of the Case History and Records for claimant's grievance # 20, 499-16.
In four letters between November 5, 2013 and March 6, 2015, claimant complained of a "lump" (Exh. 1) and a "painful mass" (Exhs. 2-4) that the staff physician said needed treatment, but was not being treated and was getting worse. Claimant also asked for tests, like an MRI, and a "proper examination."
Pages titled "Request and Report of Consultation" (Exhs. 5, 7-9, 14) show the following referrals, consultations and procedures.
Dr. Magill's handwriting is difficult to decipher, so the information provided above is based mostly on typewritten segments of the documents.
On August 7, 2015, Dr. Crosley O'Dell referred claimant for a consultation with orthopedic surgeon Dr. Richard Magill at Mount Vernon Hospital, who diagnosed a ganglion cyst on her right forearm overlying the ulnar nerve and causing numbness and pressure. He recommended excision, which he performed on January 13, 2016. Dr. Magill recommended use of a sling, the medication Percoset every six to eight hours for pain for two weeks, and follow-up at the hand clinic in three weeks.
On February 11, 2016, claimant followed up with Dr. Magill. The doctor's handwriting notwithstanding, the court discerned that after one suture was removed, claimant refused to have the remaining eight sutures removed in the clinic.
On August 11, 2016, claimant followed up with Dr. Magill, who diagnosed a 4x3 centimeter mass as a "recurrent cyst/entrapment neu" on her ulnar nerve (Exh. 8). Claimant complained of pain and numbness.
On October 26, 2016, Dr. Magill excised claimant's recurrent ganglion cyst at Mount Vernon Hospital, prescribed Percoset for pain for two weeks, and recommended follow-up at the hand clinic on November 10, 2016.
On March 22, 2017, claimant was administered an electromyogram ("EMG"). Dr. Kishore-Neu Ranade concluded that claimant was suffering from a "mild ulnar neuropathy (chronic) with improvement" and "[m]ild incidental right carpal tunnel syndrome" (Exh. 14).
A series of Progress Notes and sick call requests (Exhs. 11-13) provide the following information.
The information provided is limited because the notes are handwritten and difficult to read.
On September 26, 2013, October 12, 2014, and April 7, 2015, claimant asked to see a doctor for a mass on her right wrist, pain, burning and numbness, and difficulty lifting things.
On December 8, 2014, claimant was seen in "medical" for a previously treated injury to her middle finger, and for swelling on her right wrist that is referred to as a "ganglion cyst" on the "ulnar side" (Exh. 13). On November 18, 2015, claimant requested pre-operative tests.
Exhibit A, the grievance history, shows that: the Superintendent denied claimant's grievance on February 21, 2017, finding that "grievant is receiving care and treatment as ordered by her PCP"; claimant appealed the disposition to the Central Office Review Committee ("CORC") on March 1, 2017; and the CORC received the appeal on March 23, 2017. There is no CORC disposition in the record.
Claimant rested. Defendant moved to dismiss the claim for failure to establish a prima facie case of medical malpractice, arguing that claimant failed to call an expert witness or offer an expert opinion. The court reserved on the motion.
Defendant did not call any witnesses, and offered as Exhibit B a certified copy of claimant's entire medical record from August 2013 through March 2017, which the court admitted. Defendant rested, then renewed its motion to dismiss the claim, on which the court reserved.
"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990]; see Kagan v State of New York, 221 AD2d 7, 11 [2d Dept 1996]). The State's "duty to provide medical care and treatment to its prisoners . . . has been defined in terms of both negligence and medical malpractice" (Kagan at 16). A claim sounds in medical malpractice, rather than negligence, when "the negligence alleged [. . .] relates [. . .] to the professional skill and judgment rendered by doctors [in medically treating a patient], rather than information within the common knowledge of a layperson" (Maki v Bassett Healthcare, 85 AD3d 1366, 1367 [3d Dept 2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]). 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 (see Williams v State of New York, UID No. 2016-038-108 [Ct Cl, DeBow, J., Apr. 22, 2016]). A claimant 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. A medical expert's testimony is necessary to establish, at a minimum, the standard of care (see Spensieri v Lasky, 94 NY2d 231 [1999]; Perricone-Bernovich v Gentle Dental, 60 AD3d 744, 745 [2d Dept 2009]).
The court listened to claimant's testimony, observed her demeanor as she testified, and reviewed the medical records and other documentary evidence admitted at trial. Claimant's allegations are premised entirely on the medical treatment she received for her ganglion cyst, the lack of treatment, and delays in receiving treatment. Claimant did not offer testimony from a medical expert, or other expert evidence, to establish the standard of care or accepted practices of other medical professionals in the field. Thus, claimant has failed to make out a prima facie case of medical malpractice.
Although claimant's testimony was not a dispositive factor in the court's conclusion, on review of the medical records it became apparent that in key respects, the records did not support her factual representations. For example, claimant asserted that she did not receive treatment or tests and her grievance had not been decided. The records showed she received ongoing treatment for her condition, that ganglion cysts are often diagnosed through visual examination, and she did receive an EMG. --------
Claimant has also failed to establish that her allegations of medical negligence fit within the narrow category of cases in which "negligent omissions or commissions by State caregivers [. . .] can be readily determined by the fact finder using common knowledge without the necessity of expert testimony" (Carter v State of New York, 11 Misc 3d 1082[A] [Ct Cl, Patti, J., Mar. 22, 2006] [citing as examples cases in which a patient was scalded with a hot water bottle, and a postoperative patient was left unattended in a bathroom] [citations omitted]). This claim addresses the timing, efficacy and accuracy of a physician's medical treatment and diagnosis, none of which are within the knowledge of a layman.
Accordingly, the court grants defendant's motion to dismiss the claim for failure to establish a prima facie case of medical malpractice or medical negligence and Claim No. 129322 is dismissed. Any motions not previously ruled upon are hereby denied. The Clerk of the Court is directed to enter judgment accordingly.
September 24, 2018
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims