Opinion
# 2016-040-020 Claim No. 120911
03-11-2016
VINCENT ALEXANDERv. THE STATE OF NEW YORK
Vincent Alexander, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joan Matalavage, Esq., AAG
Synopsis
Court finds Claimant failed to establish that medical care provided for his leg brace, shoulder and chest pain was not appropriate or adequate. Claim dismissed.
Case information
| UID: | 2016-040-020 |
| Claimant(s): | VINCENT ALEXANDER |
| Claimant short name: | ALEXANDER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120911 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Vincent Alexander, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joan Matalavage, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | March 11, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro se Claimant, Vincent Alexander, failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with his Claim. Defendant's motion to dismiss (Motion No. M-87325), which was returnable on the date of trial, is denied as moot.
The trial of this Claim was held by video conference on December 3, 2015, with the parties at Coxsackie Correctional Facility in Coxsackie, New York, and the Judge at the Court of Claims in Albany, New York.
At trial, Claimant submitted four documents into evidence (Exs. 1, 4, 5 & 6). The Court also reserved its decision on the State's objections to the introduction into evidence of Claimant's Exhibits 2, 3, 7, 8, 9, 10 & 11. Upon due consideration, the Court now overrules the objections and admits the seven documents into evidence. Defendant submitted 16 documents into evidence (Exs. A-D, F-N, P-R). The Court also reserved its decision on Claimant's objections to the introduction into evidence of Defendant's Exhibits E and O. Upon due consideration, the Court now overrules Claimant's objections and admits the two documents into evidence. Exhibit E was not offered by the State for the truth of the matters asserted herein, and, accordingly, it is admitted only for the limited notice purpose for which it was offered. Claimant testified on his own behalf and the State called one witness, Nurse Vernon Baldwin.
Claimant testified as to what he perceives to be a lack of proper medical care with regard to his leg brace and problems with both his shoulders. Claimant testified that he is 53 years old and that he has been wearing a leg brace since contracting polio at the age of five. Claimant stated that he went to sick call at Greene Correctional Facility (hereinafter, "Greene") on June 29, 2007, complaining that his right leg brace was too loose and that he was having problems walking and with his balance. He said that he was advised that the nurse would schedule an appointment with the doctor for him, but he did not see a doctor. He returned to sick call on July 10 and 27, 2007, complaining about his brace, but was not seen by a doctor (see Ex. 2). On July 30, 2007, his brace broke and, when he went to sick call, he was given crutches to use (see Ex. 3). On August 21, 2007, he went to see an orthotics' specialist about his leg brace (see Ex. 1 & Ex. A).
Claimant testified that he "went back" on June 10, a date that precedes his initial complaint on June 29, 2007. In his Claim, however, Mr. Alexander states that he went back to sick call on July 10 and July 27, and the Court adopts those dates (see also Ex. R, which indicates sick call visits on the July dates, but none on June 10, 2007).
Claimant stated that he was transferred from Greene to Upstate Correctional Facility (hereinafter, "Upstate") on September 10, 2007. He said that he was seen by an orthotics' specialist on October 19, 2007 and November 30, 2007 at Upstate, but that on both occasions the leg brace was not repaired or replaced (see Ex. 10 & Ex. R). On January 22, 2008, Claimant said he arrived at Five Points Correctional Facility (hereinafter, "Five Points") from Upstate. He again advised the medical staff of his need to have his leg brace repaired or replaced. He saw a doctor at Five Points on January 23, 2008 and was advised that he would be scheduled to see an orthopaedic doctor. Claimant stated that he never saw the specialist. Claimant said that he went to sick call a number of times between late January and March 2008, complaining about the leg brace and the pain in his left shoulder. Throughout the Spring of 2008, Claimant continued to complain of shoulder pain and that the leg brace was not repaired or replaced (see Exs. 8 & 9). He also filed grievances regarding what he considered inappropriate medical care. The grievances were denied. On July 18, 2008, Claimant had an MRI performed on his left shoulder. Claimant continued to sign up for sick call and made several more visits to the medical unit between August and December 2008 regarding the brace and his left shoulder pain (see also Ex. 4). Claimant continued to make the same complaints throughout 2009, and he filed several grievances regarding the perceived lack of medical care. Claimant was transferred from Five Points to Marcy Correctional Facility (hereinafter, "Marcy") in August 2009. On February 6, 2010, Claimant fell in the bathroom at Marcy when his leg brace broke, causing him to lose his balance, fall and injure both of his shoulders.
Claimant testified that the appointment occurred on January 28, 2008. However, both his Claim and his medical records indicate it happened on January 23, 2008, which date the Court adopts (see Ex. R).
Claimant testified at trial that the MRI took place on June 18, 2008. His Claim and the medical records state it was on July 18, 2008, which date the Court adopts (see Ex. R).
On cross-examination, Claimant was shown Exhibit B, a letter he wrote to the Superintendent at Five Points, wherein he stated that the medical staff sent his leg brace out to orthotics for repair three times and the brace was still not fixed (see also Ex. D). Exhibit C is a memorandum to Claimant from Nurse Administrator Fucina at Five Points, dated September 10, 2008. The nurse advised Claimant that his brace was repaired in June 2008 and was sent out for a second repair in September of that year. Mr. Alexander was advised that he did not need a new brace, as his had been repaired. The document also reports that Claimant's shoulder was evaluated on August 8, 2008, and Claimant was approved for a course of physical therapy to decrease pain and help his range of motion. On July 24, 2009, Claimant wrote to the Superintendent at Five Points. He stated that surgery was performed on his left shoulder and the doctor informed him that physical therapy (hereinafter, "PT") would begin on June 17, 2009, however, PT did not begin until July 6, 2009. He asked the superintendent to investigate why his PT sessions did not begin on the date the doctor advised (Ex. J). Claimant received a reply, dated July 31, 2009, which advised Claimant that, upon investigation, Claimant was seen by PT on June 29, 2009 and his PT sessions would be "starting in the very near future" (Ex. K). Claimant appealed the Superintendent's decision and, on September 16, 2009, the Central Office Review Committee (hereinafter, "CORC") issued a determination stating that Claimant was initially seen by PT on June 29, 2009 and received eight sessions of PT which concluded on July 31, 2009. CORC also stated that Claimant was approved for six additional PT sessions, which started on August 10, 2009 and ended on September 11, 2009. CORC determined that Claimant's PT sessions were scheduled based upon the availability of staff and not because of any negligence by staff (Ex. L).
Mr. Baldwin testified that he is a registered nurse and has a BS degree in Nursing Science. He has been employed by the Department of Corrections and Community Supervision since February 2000 and has been a nurse administrator since March 2000. He is currently the Acting Deputy Superintendent for Health Care Services at Coxsackie. Mr. Baldwin stated he has not treated Claimant. He reviewed Claimant's lengthy medical records (Ex. R). Nurse Baldwin stated that, based upon his review of Exhibit R, Claimant received a new right leg brace on July 5, 2002 and a new left leg brace on August 5, 2002. He also stated that numerous adjustments were made to the braces. In December 2003, he received a new right leg brace. The records report that Claimant had a problem with the right brace in September 2006 and that, on August 21, 2007, he was referred to an orthopaedic specialist. The notes state that Claimant wanted a new brace, not a repaired brace. He indicated that he would sue if he did not get a new brace. Upon review of the medical record, the witness stated that Claimant was seen by an orthotics' specialist on numerous occasions in 2008 and 2009. In the Spring of 2010, he was seen by an orthotics' specialist for the fitting of a new right leg brace.
Effective April 2011, the Department of Correctional Services and Division of Parole were merged to form the Department of Corrections and Community Supervision ("DOCCS"). --------
Regarding Claimant's shoulder issues, Nurse Baldwin stated that the medical records show that Claimant had several x-rays and an MRI of his left shoulder taken before he was seen by the State's orthopaedic consultant, Dr. Rubinovich. On May 8, 2009, the doctor referred Claimant for left shoulder arthroscopic surgery, which he performed on June 15, 2009. The doctor had presumed Claimant had a rotator cuff tear, however, he did not find a tear, but did find debris in the shoulder joint which he cleaned out. Claimant started PT in June 2009 on his left shoulder. By late October 2009, the therapist reported that Claimant's shoulder was getting stronger and less painful.
Regarding Claimant's right shoulder, the witness testified that on, January 10, 2002, Claimant had x-rays of both shoulders performed and the results showed that he had joint disease in both shoulders. The witness also stated that, following Claimant's fall on February 6, 2010, he was seen by several medical providers. He had x-rays of his right shoulder on July 8, 2010 that showed he had moderate age-related arthritis. He also was receiving PT two times a week for the shoulder from June 30, 2010 to August 26, 2010. On September 13, 2011, a CT scan of Claimant's chest was performed because he was complaining of pain. No mass was found in his chest wall.
When the State engages in a proprietary function, such as providing medical care, it is held to the same duty of care as private actors engaging in similar functions (Schrempf v State of New York, 66 NY2d 289, 294 [1985]; see Sebastian v State of New York, 93 NY2d 790, 793 [1999]). Thus, 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], lv denied 76 NY2d 701 [1990]). In order to maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, "a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice" (Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804 [1976]). "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 [laypersons] or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts" (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]).
In a medical malpractice claim, where such issues are not within the usual experience and knowledge possessed by laypersons, expert medical testimony is required in order for claimant to meet the burden of proving that defendant's alleged negligence constitutes a deviation or departure from accepted practice, and evidence must be provided that such deviation was the proximate cause of the injury asserted (Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005]).
The Court has considered all the evidence, including a review of the exhibits and listening to the witnesses testify, and observing their demeanor as they did so. Claimant provided earnest and straightforward testimony concerning the deficiencies he perceives in the treatment he received. Mr. Alexander's sincerity notwithstanding, the Court finds that the acts or omissions of which Claimant complains cannot be assessed by the trier of fact on the basis of its common, everyday experience. Thus, in the absence of any testimony from a medical expert that the medical treatment Claimant received was improper and that there was something, indeed, wrong with his right leg brace that multiple visits to the orthotics' specialist could not remedy, the Court determines and concludes that Claimant has failed to establish, by a preponderance of the credible evidence, that the medical care provided to him for his leg brace and his shoulder and chest pain was not appropriate or adequate and the Claim is dismissed.
Defendant's motion to dismiss on the basis it was not timely filed and served (Motion No. M-87325) is denied as moot.
All motions made at trial upon which the Court reserved decision are now denied.
The Chief Clerk is directed to enter judgment accordingly.
March 11, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims