Opinion
# 2018-150-186 Claim No. 128214 Motion No. M-92826
01-02-2019
SHAWN GREEN v. STATE OF NEW YORK
Shawn Green, Pro Se Honorable Letitia James, Attorney General By: Paul F. Cagino, Esq., Assistant Attorney General
Synopsis
Pro se inmate's second motion for summary judgment alleging medical negligence or medical malpractice was denied as claimant offered no newly discovered evidence or sufficient cause for granting the motion. In any event, claimant failed to establish either negligence or causation.
Case information
| UID: | 2018-150-186 |
| 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): | 128214 |
| Motion number(s): | M-92826 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Shawn Green, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Paul F. Cagino, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 2, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for partial summary judgment on the issue of liability pursuant to CPLR 3212.
By Decision and Order dated March 13, 2017, defendant's motion for summary judgment was granted to the limited extent of dismissing claimant's second and third causes of action, and claimant's cross motion for partial summary judgment in his favor on the issue of liability on his first cause of action was denied. With respect to claimant's first cause of action for medical malpractice or negligence, claimant, who is diabetic, alleges he suffered complications when Physician's Assistant (PA) Ted Nesmith drastically reduced his insulin dosages during the period he was confined at Great Meadow Correctional Facility (Great Meadow) to obtain outside medical care. Claimant alleges in this regard that as a result of PA Nesmith's "departure from standard practices or lack of knowledge/skill and a medical foundation to render professional judgment for claimant's D/M treatment, he suffered unnecessary diabetes complications throughout [his] entire April 2016 Great Meadow confinement" (Claim, ¶ 5).
In support of claimant's present motion for summary judgment, he submits uncertified medical records from Great Meadow, Directive 4918 entitled Inmate Healthcare During Transfer, and a copy PA Nesmith's affidavit, which was submitted by the defendant in support of its prior motion.
The law is well settled that multiple motions for summary judgment are disfavored (Green Harbour Homeowners Assn., Inc. v Ermiger, 128 AD3d 1142, 1143 [3d Dept 2015]; Inter-Power of N.Y. v Niagara Mohawk Power Corp., 259 AD2d 932 [3d Dept 1999], lv denied 93 NY2d 812 [1999]). Nevertheless, "more than one motion is permissible where the subsequent motion is based upon newly discovered evidence or the moving party can demonstrate other sufficient cause for granting the motion" (Green Harbour Homeowners Assn., Inc., 128 AD3d at 1143, quoting Inter-Power of N.Y., 259 AD2d at 933). Here, the evidence submitted by the claimant was not newly discovered and he failed to otherwise demonstrate sufficient cause for granting the motion.
Even if the Court were to address the merits of claimant's motion, denial is required for the same reason his prior cross motion for summary judgment was denied - medical expert testimony is required in order to establish that the medical care provided at Great Meadow constituted a deviation from the applicable standard of medical care and was a proximate cause of his injuries. As to claimant's negligence cause of action, "[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], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]).
While claimant seeks to predicate liability on the fact that Physician's Assistant Nesmith failed to increase his medication dosage when his "FBS" was greater than 200 in accordance with a note in his Ambulatory Health Record dated March 8, 2016, the identity, authority and status of the individual who wrote the note is unclear (Green affidavit sworn to September 5, 2018, ¶ 6). As a Physician's Assistant himself, Nesmith may have determined that, for whatever reason, an increase in the dosage was unnecessary. Nevertheless, assuming Nesmith was not authorized to vary the prior order and his act of doing so constituted ministerial neglect, expert proof is necessary to establish causation (see 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]). Thus, even if claimant's medical records were in admissible form (which they are not) (see Zuckerman v City of New York, 49 NY2d 557 [1980]), and regardless of whether the claim sounds in negligence or medical malpractice, expert medical proof is required to prevail.
Claimant's motion for partial summary judgment is denied.
January 2, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Motion for Summary Judgment, dated September 5, 2018;
2. Affidavit of Shawn Green, sworn to September 5, 2018, with attachments;
3. Affirmation in Opposition of Paul F. Cagino, Esq., dated October 24, 2018;
4. Reply affidavit, sworn to November 2, 2018, with attachments.