Opinion
# 2016-044-003 Claim No. 119525
03-29-2016
CLIFTON DAVIS v. THE STATE OF NEW YORK
CLIFTON DAVIS, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
After trial of inmate claimant's claim for medical malpractice and/or negligence relating to surgery to remove bullet fragments from his leg, Court dismissed claim for failure to establish appropriate standard of care through requisite expert testimony.
Case information
| UID: | 2016-044-003 |
| Claimant(s): | CLIFTON 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): | 119525 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | CLIFTON DAVIS, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, seeks to recover damages from defendant State of New York (defendant) for medical malpractice and medical negligence relating to the removal of bullet fragments from his leg on January 18, 2011 while he was incarcerated at Elmira Correctional Facility (Elmira). Trial of the matter was held by video conference in the Binghamton District on March 17, 2016.
At trial, claimant testified that he had been shot in 1989, and that doctors were unable to remove the bullet at the time. Claimant stated that the bullet eventually started "rising," and it was causing him pain and leading to difficulty walking.
All quotes herein are taken from the Court's notes of the proceeding.
Claimant said that the physician in charge of the Elmira infirmary, Dr. John Alves, examined his leg. Claimant averred that Alves told claimant that he would be sent to an outside hospital for surgery to remove the bullet. However, claimant was called to the infirmary on January 18, 2011, where Alves proceeded to operate to remove the bullet. During the course of the surgery, claimant said he was given a series of "numbing" shots, and that Alves was "digging around" in his leg. Claimant stated that the surgery was intensely painful. Alves removed a number of bullet fragments, and allegedly told claimant he had "gotten them all." Alves removed the stitches on January 28, 2011, and noted that the leg was infected. Alves accordingly prescribed Doxycycline Hyclate 100 mg. On January 29, 2011, in the absence of Alves, the infirmary conducted a teleconference with an outside doctor. That doctor prescribed a different antibiotic. Claimant stated that Alves subsequently drained fluid from his leg.
On cross-examination, claimant acknowledged that at one point there had been a metal rod in his leg because the femur broke when he was shot. The rod had been removed prior to the incidents complained of in this claim.
Claimant rested his case at the close of his testimony. Defendant's counsel then moved to dismiss on the ground that claimant failed to make a prima facie case because no expert medical testimony was introduced to show that defendant's alleged malpractice/negligence was a deviation from accepted medical practice, or that such deviation was the proximate cause of claimant's injuries. The Court reserved decision on the motion. Defendant then rested its case.
A review of claimant's pertinent medical records (Claimant's Exhibit 1) reveals the following. Claimant was examined on January 11, 2011, complaining of pain in his left thigh. The Ambulatory Health Record (AHR) for that date notes the existence of a foreign body in claimant's left thigh. Alves indicated that minor surgery would be scheduled for the following week to remove the bullet, and further noted that the risk versus benefit of the surgery was discussed with claimant.
Alves performed the surgery on January 18, 2011. Claimant's AHR for January 18, 2011 states in pertinent part: "Seen on 1/11/11, minor surgery [left] thigh - upper ant. Betadine scrub sterile drapes. 1% xylocaine [with] Epi locally. # 15 blade used to incise shin over [foreign body]. Sharp & blunt dissection [with] hemostat & scissors - 3 bullet [fragments] removed. . . Wound care precaution" (id. at 13). Claimant's AHR then notes that the dressing on his wound was reinforced that evening, and a moderate amount of bloody drainage was noted (id. at 12). Claimant was given Motrin OTC for pain. On January 21, 2011, the dressing over claimant's wound was changed, and there is a notation in the AHR that "wound precautions [were] further clarified" (id.). On January 25, 2011, claimant requested large bandaids to cover the wound (id.). On January 28, 2011, the sutures were removed and steri-strips applied over the wound. Doxycycline was also prescribed (id. at 11). On January 29, 2011, a Saturday, claimant complained of drainage and pain. A telemed conference was conducted, during which the doctor prescribed Keflex. The AHR notes that Alves was notified of the new orders, the wound was cleansed, and fresh dressings were applied. The AHR further states that claimant would be seen by Alves on Monday (id.). Alves examined claimant on Monday and noted a "hard nodule" under the healing incision (id.). He drained a "scant 1 cc of yellow . . . fluid" which was sent for testing (id.). Claimant's records indicate that the fluid was cultured and showed no growth (id. at 15).
Claimant was seen again on February 2, 2011, at which time it was noted that claimant's "[left] thigh area [was] edematous [and] hard to palpate" (id. at 10). A scant amount of yellow drainage was also noted (id.). Claimant's AHR then notes that claimant saw Alves for a left thigh abscess on February 3, 2011, at which time it was noted that a "hard knot persists" (id.). An X ray was ordered (id.). The X ray report indicated that an examination of the left femur showed "[s]tatus post gunshot wound on the left with metallic fragments and old healed fracture. Old rod has been removed with no acute abnormalities" (id. at 16). A box was checked indicating that no further action was required (id.). Claimant continued to complain of pain and was next seen on February 4, 2011. The AHR for that date notes that the wound was healing and there was "scant" discharge (id. at 7). The AHR for February 10, 2011 notes that claimant continued to slowly improve (id.). Claimant was seen on February 16, 2011, at which time it was noted that the incision was red, and there was no drainage (id. at 6). Claimant indicated he was not in pain, but had some numbness (id.). Claimant continued to complain thereafter, but no swelling or discharge was noted on March 3, 2011 (id. at 5). On March 11, 2011, it was noted that the surgical scar was "well healed [and] non-tender" (id. at 4).
Claimant filed a grievance on February 1, 2011, claiming that Alves had been negligent in his treatment of claimant. He alleged that the improper treatment included failing to examine him prior to the surgery and also being negligent in post-surgical care (Defendant's Exhibit A). The grievance was denied based on the conclusion that there was no evidence of medical negligence.
In response to the grievance, Alves signed a written statement dated February 8, 2011, which stated in pertinent part:
[Claimant] has an old gunshot wound to his mid left thigh. He had a bullet fragment that was trying to surface and could be felt through the skin. On 1/11/11, [claimant] told me it bothered him and asked if I could remove it from his leg. I discussed with him the risks/benefits of minor surgery to remove the bullet fragment, including, bleeding, infection and scarring.
On 1/18/11, I performed a surgical excision of the bullet fragment (in fact there were 3 fragments) under sterile conditions. Post operatively, he developed a minor wound infection and he was placed on oral antibiotics. I have seen him several times in the past 2 weeks and his surgical site is healing well.
I performed an adequate examination prior to the procedure and was successful in removing the bullet fragments that were bothering him. Furthermore, I deny any medical negligence during his post-operative course, as he has been seen repeatedly and has been treated appropriately for his wound infection (id. at 6).
Claimant's medical records and grievance reveal nothing further of significance pertaining to his claim.
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 v Bodnar, supra, 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 without the requisite expert medical testimony (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. Further, the Court listened to claimant's testimony carefully, and observed his demeanor while he testified. The Court concludes that claimant's testimony was not persuasive in the areas where it was contradicted by the written records.
Claimant's assertion that Alves' conduct also violated the prohibition against cruel and inhuman treatment contained in the State Constitution is without merit. Although the Court of Appeals has recognized the existence of a constitutional tort as a "narrow remedy" to assure a constitutional provision's effectiveness and to further its purpose (see Brown v State of New York, 89 NY2d 172, 188-192 [1996]), it is not necessary to recognize a constitutional tort in situations where a claimant has adequate, alternate remedies such as medical malpractice and medical negligence, which are available in this case (see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). To the extent that claimant may also be asserting a violation of the Federal Constitution, the Court of Claims does not have jurisdiction to consider Federal Constitutional claims, including civil rights violations brought pursuant to 42 USC ?1983 (see e.g. Brown, 89 NY2d at 184-185). --------
The claim is therefore dismissed on the law and on the merits, and any motions not heretofore determined or upon which reservation was made are hereby denied.
Let judgment be entered accordingly.
March 29, 2016
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims