Opinion
# 2015-039-444 Claim No. 119310
07-30-2015
MICHAEL BRUNO v. STATE OF NEW YORK
Sussman & Watkins By: Michael A. Deem, Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York By: Douglas R. Kemp Assistant Attorney General
Synopsis
Following a trial on the issue of liability, inmate's claim for medical malpractice and/or medical negligence is dismissed on the ground that claimant failed to present expert testimony establishing a deviation from the standard of care.
Case information
| UID: | 2015-039-444 |
| Claimant(s): | MICHAEL BRUNO |
| Claimant short name: | BRUNO |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119310 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | James H. Ferreira |
| Claimant's attorney: | Sussman & Watkins By: Michael A. Deem, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman Attorney General of the State of New York By: Douglas R. Kemp Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 30, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, then an inmate proceeding pro se, filed this claim with the Chief Clerk of the Court of Claims on December 27, 2010. Claimant alleged therein that he did not receive adequate medical care with respect to leg pain and/or peripheral vascular disease that he suffered between 2005 and 2008 while he was in the custody of the Department of Corrections and Community Supervision (hereinafter DOCCS) at Bare Hill Correctional Facility (hereinafter Bare Hill). Claimant further alleged that he suffered from repeated Methicillin-resistant Staphylococcus Aureus (hereinafter MRSA) bacterial skin infections while at Bare Hill and that the medical staff negligently failed to take reasonable measures to respond to and prevent outbreaks of such infections at the facility (Claim ¶ 8). By Decision and Order dated June 11, 2014, the Court denied defendant's motion for summary judgment dismissing the claim (see Bruno v State of New York, UID No. 2014-039-415 [Ct Cl, Ferreira, J., June 11, 2014]).
Since filing this claim, claimant has been released from State custody and has retained counsel.
A trial on the issue of liability was conducted on January 29, 2015 at the Court of Claims in Albany, New York. Claimant testified on his own behalf and offered several exhibits in support of his claim. Defendant did not call any witnesses and did not submit any evidence. The Court also received post-trial submissions from the parties.
Initially, the Court notes that, in his opening statement at trial, claimant's counsel stated that he would be proceeding as to three claims: (1) a claim arising from the treatment and management of claimant's skin infections at Bare Hill; (2) a claim arising from the alleged failure of medical staff at Bare Hill to treat his peripheral vascular disease; and (3) a claim that a valve was left inside claimant's leg during bypass surgery to treat the peripheral vascular disease. The third cause of action was not alleged in the complaint, and claimant has not moved to amend the complaint or conform the pleadings to the proof pursuant to CPLR 3025 (c). However, " '[i]t is well settled that a variance between the pleadings and the proof may be disregarded unless it can be said to have misled an adversary and occasioned prejudice' " (Matter of Chesko v Chesko, 274 AD2d 729, 730 [3d Dept 2000], quoting Hummel v Vicaretti, 152 AD2d 779, 780 [3d Dept 1989], appeal dismissed 75 NY2d 809 [1990] [additional internal quotation marks and citation omitted]; see Anderson v Dainack, 39 AD3d 1065, 1068 [3d Dept 2007]). "This relief may be granted in the absence of a motion by a party . . . if justice so requires (Hummel v Vicaretti, 152 AD2d at 780-781). Here, the Court discerns no prejudice to defendant and will consider the proof as to that cause of action.
The Court further notes that, in his post-trial submission, claimant's counsel states that he is pursuing only two causes of action - the cause of action arising from the MRSA infections and the cause of action arising from the bypass surgery. Based upon this representation, the Court deems the cause of action as to defendant's alleged failure to adequately treat claimant's leg pain and/or peripheral vascular disease to be withdrawn, and will not address it.
At trial, claimant testified, in relevant part, that he entered State custody on June 10, 2005 and was transferred to Bare Hill shortly thereafter. He testified that, during his time at Bare Hill, he had 27 skin infections. He first sought medical treatment when he developed boils and abscesses on his legs following a colonoscopy procedure on August 24, 2005. His treating physician, Dr. Whalen, attempted to drain them with a needle. He was also given bandages and several types of antibiotics, which did not work. Claimant testified that, on October 2, 2005, a culture was done and he was diagnosed as a MRSA carrier and given an antibiotic that worked to heal his wounds. Claimant further testified that he suffered from additional skin infections in October and November 2006, in March, May and July 2007 and in March and April 2008. He testified that DOCCS staff at Bare Hill did not do anything to prevent him from infecting other inmates; for example, he was never isolated from other inmates and was not given extra linens or additional clothing. Claimant testified that Bare Hill did not have an isolation room, and that it was the policy of Bare Hill to "just treat you and send you back into [the] population" (Tr. 30). Claimant testified that he was transferred to Wallkill Correctional Facility (hereinafter Wallkill) on May 21, 2008; in September 2008, he contracted another skin infection and was promptly isolated. A culture done at Wallkill was positive for MRSA. He remained isolated until his wounds healed.
References preceded by "Tr." are to the written transcript of the trial.
Claimant further testified that he underwent three bypass surgeries on his legs to address blockages in his arteries. These surgeries took place at Albany Medical Center on April 16, April 21 and April 23, 2009. On April 16, 2009, he had surgery on his right leg, and on April 21, 2009, he had surgery on his left leg. Claimant testified that another surgery was performed on April 23, 2009 "to remove a valve that was left in one of the veins they used to bypass [his] artery" (Tr. 79). He explained that the valve "should have been cut out but it wasn't cut out" so they had to "re-do" his leg on April 23, 2009 (Tr. 80). Claimant affirmed that he was still in DOCCS custody at the time of these surgeries. In support of his claim, claimant has submitted, among other things, his ambulatory health record from June 2005 until April 2009.
Claimant offered other medical records in support of his claim which, upon objection of defendant, were not admitted into evidence because they were not certified.
"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]; accord Auger v State of New York, 263 AD2d 929, 931 [3d Dept 1999]). "Where an inmate alleges that defendant abdicated its duty to provide adequate medical care, he or she must present competent evidence demonstrating defendant's common-law negligence or that it departed from accepted standards of care and that such deviation was the proximate cause of the sustained injuries" (Knight v State of New York, 127 AD3d 1435, 1435 [3d Dept 2015]). "Whether the claim is grounded in negligence or medical malpractice, where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical testimony is a required element of a prima facie case" (Myers v State of New York, 46 AD3d 1030, 1031 [3d Dept 2007] [internal quotation marks and citations omitted]; see Knight v State of New York, 127 AD3d at 1435; Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007]).
Upon application of these principles to the facts presented here, and after weighing the evidence proffered at trial, including the exhibits received into evidence and considering claimant's testimony and demeanor, the Court finds that claimant has failed to establish, by a preponderance of the credible evidence, his claims against defendant.
Claimant alleges that Bare Hill staff were negligent with respect to the treatment and prevention of MRSA outbreaks at the facility. However, claimant presented no expert testimony on this issue. Specifically, the Court received no expert testimony describing the proper procedures for the treatment and prevention of MRSA infections, and no expert testimony establishing that the treatment that claimant received with respect to his skin infections and/or MRSA infections was inappropriate. As such information lies outside the experience and knowledge of a layperson, the Court finds claimant's failure to present expert testimony to be fatal to this claim (see Myers v State of New York, 46 AD3d at 1031; Wood v State of New York, 45 AD3d at 1198; Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005]). Claimant's reliance on several documents apparently published by the Center on Disease Control describing MRSA and strategies for managing MRSA - without testimony interpreting such documents - is insufficient to establish his prima facie case.
Likewise, claimant has failed to establish his cause of action arising from the alleged failure of the surgeon to remove a valve during his bypass surgery on April 21, 2009. Claimant's testimony on this point is not supported by any medical evidence or any expert testimony. The medical records that were admitted into evidence indicate only that the surgeries were performed and contain no other details. Claimant's testimony, alone, is not sufficient to establish that a valve was, in fact, left inside his leg. In addition, the Court received no expert testimony establishing that the surgeon's alleged act of leaving a valve in claimant's leg following the surgery was not in accordance with accepted medical treatment or constituted a deviation from accepted standards of care. As such information lies outside the experience and knowledge of a layperson, the Court finds claimant's failure to present expert testimony to be fatal to this claim (see Myers v State of New York, 46 AD3d at 1031; Wood v State of New York, 45 AD3d at 1198; Tatta v State of New York, 19 AD3d at 818).
As such, the Court concludes that claimant has failed to satisfy his burden to prove medical malpractice or medical negligence. Defendant's motion to dismiss the claim, made at trial and upon which the Court reserved decision, is now granted and the claim is dismissed. Any motions made at trial upon which the Court had previously reserved or which remain undecided are denied. The Clerk of the Court is directed to enter judgment accordingly.
July 30, 2015
Albany, New York
James H. Ferreira
Judge of the Court of Claims