Opinion
# 2016-044-001 Claim No. 113093
05-10-2016
SAMUEL DAVIS v. THE STATE OF NEW YORK
SAMUEL DAVIS, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Michael D. Brown, Assistant Attorney General
Synopsis
After trial of inmate claimant's claim for medical malpractice and/or negligence for alleged failure of facility to provide him with orthopedic boots while he was incarcerated in SHU, Court dismissed claim for failure to establish appropriate standard of care through expert testimony. However, Court noted that facility's actions were questionable in deeming orthopedic boots necessary while claimant was in general population, then unnecessary in SHU, then suddenly a medical necessity during same SHU confinement, particularly given claimant's credible testimony.
Case information
| UID: | 2016-044-001 |
| Claimant(s): | SAMUEL DAVIS |
| Claimant short name: | DAVIS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 113093 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | SAMUEL DAVIS, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Michael D. Brown, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 10, 2016 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim seeking recovery for medical malpractice and medical negligence based upon the alleged failure by defendant State of New York (defendant) to provide him with "medical boots" (orthopedic boots) during his incarceration both at Elmira Correctional Facility (Elmira) and Southport Correctional Facility (Southport). Claimant moved for summary judgment (Motion No. M-86544), which was denied (Davis v State of New York, UID No. 2015-044-526 [Ct Cl, Schaewe, J., July 9, 2015]). Trial of the matter was held by video conference in the Binghamton District on March 17, 2016.
Claimant alleges that defendant had previously issued medical boots to him, but would not allow him to have the boots when he was assigned to the Special Housing Unit (SHU).
Claimant has made numerous additional motions, which are not relevant to this Decision. --------
At trial, claimant testified that he had been prescribed orthopedic boots on September 24, 2004. He stated that when he was confined to SHU at Elmira on September 14, 2006, Dr. Alves (the facility's medical director) denied him access to his orthopedic boots. He was transferred to Southport on November 1, 2006, at which time the nurse practitioner there also denied him use of the boots.
Claimant stated that he had previously had X rays which showed that the bone in his big toe is curved, thus requiring the boots (he characterized the condition as Hallux Valgus). He testified that the lack of the boots in SHU caused him serious discomfort. He stated that his feet would cramp up, and that the sneakers provided no support. He was advised by medical personnel to take painkillers for his discomfort. He liked to walk in his cell, but that exercise was limited due to the pain in his feet. He said he also declined recreational exercise time because it hurt his feet too much.
In support of his claim, claimant submitted a memorandum dated March 9, 1993 from the Director of Facility Health Services at Southport (Claimant's Exhibit 1) which indicated that it was a medical necessity for claimant to have his orthopedic boots in SHU. Claimant also submitted a prescription from the Elmira Medical Facility dated September 24, 2004 for orthopedic boots (Claimant's Exhibit 2), and a permit from the Southport Medical Department dated January 25, 2007 which indicated that there was a medical necessity for claimant to have his orthopedic boots in SHU (claimant's Exhibit 3). Notably, this is the same SHU confinement for which claimant was initially denied access to the boots.
On cross-examination, claimant stated that he was confined to SHU (both at Elmira and Southport) continuously from September 2006 to January 2007. He said that while in SHU he was entitled to 1 hour per day of recreational activity, and was confined to his cell for the other 23 hours per day. He acknowledged that he filed a grievance in October 2006 at Elmira due to the denial of access to his orthopedic boots (Defendant's Exhibit A), which was denied based on Dr. Alves' determination that no medical necessity existed that required claimant to have access to the boots while in SHU (id. at 4). The Inmate Grievance Review Committee (IGRC) found that if it was a medical necessity for claimant to wear orthopedic boots while in general population, it should also be a medical necessity for claimant to have them while in SHU (id. at 5). The Superintendent disagreed and denied the appeal (id. at 1).
Claimant stated when he transferred to Southport, his request for the boots was denied based upon an evaluation by Nurse Practitioner (NP) Fowler that stated that claimant did not need the boots because his activity was limited. Claimant stated that NP Fowler did not examine him in order to determine whether the boots were medically necessary. He then filed another grievance regarding the denial of the boots (Defendant's Exhibit B). The IGRC recommended denial of claimant's grievance based upon Fowler's recommendation, and the Superintendent denied the grievance on November 27, 2006 (id. at 2).
Claimant again noted on cross-examination that a medical examination on January 25, 2007 (while he was still in SHU at Southport) found that it was medically necessary for claimant to have access to his orthopedic boots (Claimant's Exhibit 3). His Ambulatory Health Records (Defendant's Exhibit C) indicate that he complained about foot pain on October 29, 2006, November 6, 2006, and November 16, 2006.
Claimant rested his case at the close of his testimony. Counsel for defendant moved to dismiss the claim on the ground that claimant failed to establish a prima facie case because no expert medical testimony was introduced to show that defendant's alleged malpractice or negligence was a deviation from accepted medical practice, or that such deviation was the proximate cause of claimant's injuries. In response to the motion, claimant requested the opportunity to submit an X ray report which would allegedly document the medical condition requiring use of the orthopedic boots, stating that he had the report in his court bag, which was "lost" while claimant was being transported to trial. Defendant's counsel objected, arguing that he would not have the opportunity to cross-examine claimant regarding the contents of such a report. The Court agreed to review claimant's submission and consider defendant's objection. The Court then reserved decision on the motion. Defendant rested its case.
After trial, claimant submitted an X ray Report from Green Haven Correctional Facility dated October 5, 1998. The report provides in pertinent part: " Exam both feet . . . shows mild increase in the hallux valgus angle on left . . . normal on right . . . IMP: MILD HALLUX VALGUS LEFT FOOT." Defendant again objected to admission of this report on the basis that the document was uncertified and contained inadmissible hearsay, as well as on the ground that claimant had not produced any medical expert testimony describing the condition or that the condition requires orthopedic boots. Counsel is correct on all grounds, and admission of this report is denied. It is so remote in time that any relevance is questionable, and there is no indication that orthopedic boots would have been an appropriate, not to mention necessary, treatment.
There is a subtle distinction between medical negligence and medical malpractice. The Court of Appeals has recognized that although a medical provider "in a general sense is always furnishing medical care to patients . . . not every act of negligence toward a patient would be medical malpractice" (Bleiler v Bodnar, 65 NY2d 65, 73 [1985]). When the allegedly wrongful conduct "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician," the cause of action is for medical malpractice rather than negligence (id. at 72; see Scott v Uljanov, 74 NY2d 673 [1989]). "By contrast, when 'the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [provider's] failure in fulfilling a different duty,' the claim sounds in negligence" (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] quoting Bleiler, 65 NY2d at 73). However, "[u]nder either theory, '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is . . . required' to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to claimant's injuries" (Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]).
Upon a review of the testimony and evidence submitted, the Court grants defendant's motion to dismiss the claim. The Court cannot conclude that defendant's treatment of claimant deviated from good and accepted medical standards of care or that any malpractice or medical negligence proximately caused claimant's injury without the requisite expert medical testimony (Wood, 45 AD3d at 1198; Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916, 918 [3d Dept 2000], lv denied 95 NY2d 751 [2000]; Wahila v Kerr, 204 AD2d 935, 937 [3d Dept 1994]). Claimant's failure to provide such expert testimony is fatal to his cause of action for medical malpractice and/or medical negligence.
The Court notes, however, that it seems questionable - at the very least - that claimant required orthopedic boots while in general population, did not require them initially in SHU confinement, and then they suddenly did become a medical necessity during the same SHU confinement. Moreover, claimant's testimony was credible. It is unfortunate that claimant was unable to provide the testimony of a medical expert, as such testimony could well have led to a different outcome.
The claim is dismissed on the law, and any motions not heretofore determined or upon which reservation was made are hereby denied.
Let judgment be entered accordingly.
May 10, 2016
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims