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DeMaille v. State

New York State Court of Claims
Mar 25, 2015
# 2015-041-508 (N.Y. Ct. Cl. Mar. 25, 2015)

Opinion

# 2015-041-508 Claim No. 112117

03-25-2015

VINCENT DEMAILLE v. THE STATE OF NEW YORK

THE LAW OFFICES OF THOMAS F. LIOTTI By: Thomas F. Liotti, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Belinda Wagner, Esq. Assistant Attorney General


Synopsis

Claim alleging medical malpractice and/or negligence is dismissed after trial where trial record was devoid of expert medical proof that defined the standard of care to which claimant was entitled, established that defendant's actions, or inactions, in its treatment of claimant's medical conditions deviated from the standard of care owed claimant or that demonstrated defendant's medical care of claimant, if found to be substandard, proximately caused claimant any injury or damage.

Case information

UID:

2015-041-508

Claimant(s):

VINCENT DEMAILLE

Claimant short name:

DEMAILLE

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

112117

Motion number(s):

Cross-motion number(s):

Judge:

FRANK P. MILANO

Claimant's attorney:

THE LAW OFFICES OF THOMAS F. LIOTTI By: Thomas F. Liotti, Esq.

Defendant's attorney:

HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Belinda Wagner, Esq. Assistant Attorney General

Third-party defendant's attorney:

Signature date:

March 25, 2015

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Vincent DeMaille (claimant) was a state prison inmate in the care and custody of defendant, during the time relevant to this claim, from April 24, 2003 to April 4, 2005. Prior to entering the state prison system on April 24, 2003, claimant spent time in local jail in Suffolk County, where, he testified, he was assaulted on September 12, 2002 by a correction officer. The assault resulted in injury and severe pain to his spine and lower back.

Claimant filed a claim on March 21, 2006, alleging that while in defendant's custody, claimant was not provided adequate medical care to properly address ear infections and his severe back and leg pain. Claimant further alleged that defendant failed to supply him with a back brace and that defendant obligated claimant to perform heavy labor in contravention of a doctor's order.

Prior to trial, defendant had moved to dismiss the claim on the ground that all or portions of the claim were untimely. That motion resulted in a Decision and Order (M-71593) by the Hon. Richard Sise of the Court of Claims, dated May 8, 2007, and filed on June 20, 2007. Judge Sise granted defendant's motion to dismiss the claim, except, as stated in the operative paragraph:

"Defendant's motion is denied with respect to the causes of action alleging 1) providing inadequate or incorrect treatment of Claimant's ear condition from August 2003 until his release from incarceration; 2) providing negligent medical treatment of injuries affecting his back and legs from October 5, 2004 until January 4, 2005, when the Notice of Intention was served; and 3) negligently requiring Claimant to perform strenuous work that damaged his health, from October 5, 2004, and otherwise granted."

Accordingly, claimant's causes of action and proof at trial were limited by the parameters of Judge Sise's Decision and Order of May 8, 2007, as set forth above.

Trial was conducted the week of June 2-6, 2014. Trial testimony was actually only taken on the day of June 2, 2014. Claimant testified that day, and he was his only trial witness. The Court granted claimant three adjournments during the course of the week, twice over defendant's objections to claimant's applications for continuances. The adjournments were granted in an effort to accommodate claimant's attempts, ultimately unsuccessful, to produce, pursuant to subpoena, Dr. John Galeno, claimant's treating orthopedic surgeon. No pre-trial notice or disclosure of Dr. Galeno as an expert witness had been provided by claimant, and, in fact, both prior to trial, in written communications between the parties, and on the record during the trial, claimant represented that he was seeking to call Dr. Galeno as a fact witness alone.

Claimant's trial testimony detailed his time in defendant's care and custody between April 24, 2003 and April 4, 2005. During this time, claimant resided in a number of defendant's correctional facilities, for various lengths of time. Claimant testified about health issues related to his ears and further related to his spine/back and leg, and the medical care, or lack thereof, provided him by defendant during this period of incarceration.

Claimant testified to enduring chronic head pain and pressure, vertigo, ear infections and nausea, and detailed the medications defendant prescribed for him to address these conditions. He also testified about medications never prescribed for him and the course of medical treatment that defendant did provide to treat his ear-related symptoms. No expert medical proof was submitted that established the standard of care to which claimant was entitled. No expert medical proof was submitted that addressed, let alone proved, that the medical care defendant did provide to treat claimant's described symptoms was substandard.

Additionally, claimant testified about defendant's medical care to address claimant's chronic and severe back pain. He complained that defendant's care was either absent or inadequate, and discussed medications he was prescribed to address his condition and medications which were denied him. Claimant further testified that spinal fusion surgery was performed by Dr. Galeno on February 18, 2004 at an outside hospital, followed by two weeks of hospitalization. Thereafter, according to claimant, despite having had a back brace ordered for him by Dr. Galeno at the time of surgery and the issuance of a subsequent "no work" order by Dr. Galeno, defendant both failed to provide him with the back brace and obligated him to do heavy labor.

Claimant's testimony regarding the adequacy of defendant's medical care for his chronic and severe back pain, including his discussion about the scheduling and performance of Dr. Galeno's spinal surgery and the circumstances surrounding being fitted for but never having received a back brace, separate from and unrelated to his testimony about the "no work" issue, as with his testimony concerning his ear-related symptoms, was unsupported by expert medical proof that either established the standard of care owed claimant or that established the medical care provided to him by defendant for his back and spine was substandard.

Claimant testified that during a one month period of incarceration at McGregor Correctional Facility (McGregor), from October 5, 2004 to November 3, 2004, he was ordered to lift a heavy mop bucket and, "at that time, I felt and heard a crack, a pop, in my spine, like if, you know, somebody would crack their knuckles, but it wasn't in my knuckles, it was in my back" (Trial Transcript p 78, lines 15-18; also, see pp 82-83 and 129-130).

He described the resulting pain as follows:

"I mean, agonizing pain. I don't mean a little back ache from, you know - - you know, moving around too much. I mean, complete and utter pain. I mean, with every breath, there was a throb of pain. The pain would take my breath away, like, if I was punched in the solar plexus. You know, the pain would bring tears to my eyes, you know, and just horrible, horrible, you know, and the pain I had to endure on a daily basis henceforth" (Trial Transcript, p 79, lines 6-14).

Despite the vividness of claimant's trial testimony about hearing a crack, a pop, in his spine and the resulting described pain, he was seen but one time during his month-long incarceration at McGregor by McGregor's resident doctor, Dr. Michael Crook, on October 15, 2004, and during that visit, no mention of any cracking or popping was reported, no cause for the claimant's back and leg pain was noted, and no tests were ordered in response to the claimant's reports of pain (Exhibit 12, EBT of Dr. Crook, pp 29-30). In fact, a medical note of Dr. Crook, admitted into evidence, in response to claimant's submission of a "contact slip," dated October 26, 2004, states in part, "Based on your recent evaluation and examination with me there is no medical or clinical indication for 'no work papers' " - - emphasis in original (Exhibit 7).

Claimant further testified that shortly after his release from state prison on April 4, 2005, he was advised by Dr. Galeno that two screws that had been implanted during his spinal surgery of February 18, 2004 had broken. He also described an event which occurred between the time of his spinal surgery of February 18, 2004, and October 2004, the month, he testified, during which he heard a crack or pop in his back/spine. Claimant was involved in a gang-related physical altercation, alternately described as having occurred in July or August 2004, while housed at Washington Correctional Facility, that concluded with claimant in a fetal position on the floor, to which claimant testified "I took a couple of blows before it was broken up" (Trial Transcript, p 64).

Claimant was his only trial witness. Defendant called no witnesses, as the EBT testimonies of Dr. John Supple (Exhibit 11), a treating physician at Fishkill Correctional Facility while claimant was housed there, of Dr. Michael Crook (Exhibit 12), a treating physician at McGregor while claimant was housed there, and of Dr. Joshua Tripp Rosenfield (Exhibit 13), a treating physician at Greene Correctional Facility while claimant was housed there, were admitted into evidence without objection. None of the three doctors expressed any expert medical opinions regarding the standard of medical care owed claimant, nor did any of the three doctors expertly opine that defendant had provided claimant with substandard medical care during his time of incarceration.

It "is well settled that where the State engages in a proprietary function such as providing medical and psychiatric care, it is held to the same duty of care as private individuals and institutions engaged in the same activity" (Rattray v State of New York, 223 AD2d 356, 357 [1st Dept 1996]).

To sustain a cause of action for medical malpractice, a claimant must prove, generally through expert medical opinion testimony, two essential elements: (1) a deviation or departure from accepted practice, and (2) that such departure was a proximate cause of plaintiff's injury (Carter v Tana, 68 AD3d 1577, 1579 [3d Dept 2009]).

Defendant is required to exercise professional medical judgment within the range of accepted medical standards in its treatment of claimant. The law is clear that "neither a medical provider . . . nor the State or governmental subdivisions employing the medical provider, may be held liable for a mere error in professional judgment" (Ibguy v State of New York, 261 AD2d 510, [2d Dept 1999], lv denied 93 NY2d 816 [1999]; Sciarabba v State of New York, 182 AD2d 892, 893-894 [3d Dept 1992]).

Conclusory allegations of medical malpractice, unsupported by competent evidence establishing its essential elements, are insufficient to state a prima facie case. Through a medical expert, it must be shown that defendant deviated from the standard for good and acceptable care in the locality where the treatment occurred and that the deviation was the proximate cause of the injury (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]; Yamin v Baghel, 284 AD2d 778, 779 [3d Dept 2001]; Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]).

"Whether 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], lv denied 5 NY3d 712 [2005], quoting (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]).

The underpinnings of the claim repeatedly refer to defendant's failure to medically treat claimant's medical conditions at all, or to defendant's failure to adequately treat claimant's medical conditions. For example, and by way of illustration only, the following assertions are made, verbatim, in the claim:

1) Paragraph 26: All the while, the claimant addressed his pain and extreme discomfort with the medical personnel at Fishkill. His requests for medical attention were wholly ignored.

2) Paragraph 29: Despite the fact that immediate emergency surgery was recommended by Dr. Galeno, said surgery did not take place until February 18, 2004, almost three (3) months later. During these three months, the claimant suffered from extreme physical pain, agony and mental anguish relating to the same. During said time, the claimant was refused any type of pain medication to abate his pain.

3) Paragraph 37: Despite Dr. Robinovich's instructions to provide the claimant with effective pain medication, the Greene Correctional Facility failed and refused to provide the claimant with the same. Copies of sick call slips and informal complaints submitted by the claimant regarding the same are collectively annexed as Exhibit "G".

4) Paragraph 40: In January, 2005, the claimant submitted a one hundred (100) page Article 78 petition to Greene County Supreme Court outlining Fishkill's failure to provide the claimant with adequate and appropriate medical care.

5) Paragraph 52: The DOCS medical care and treatment of the claimant was negligent, reckless and careless and departed from accepted standards of proper medical care and treatment in that there was a failure to properly diagnose and treat the claimant pre and post-operatively; DOCS failed to follow the post surgical instructions of the claimant's doctor by forcing the claimant to perform labor and failed to issue proper and prescribed medication by Dr. Galeno to the claimant; and DOCS otherwise failed to employ reasonable and proper care steps, procedures, and practices for the health, welfare and safety of the claimant and to avoid injury to him.

6) Paragraph 69: Due to the failure of the Fishkill medical personnel to properly diagnose and treat said medical condition, a severe ear infection developed in both of the claimant's ears.

7) Paragraph 71: It took months for an ENT consultation to be scheduled after the audiology results were forwarded to the claimant's facility primary care provider. During this inordinate delay, the claimant suffered from severe pain, sickness and dizzy spells. Although the claimant had requested medication to alleviate the pain, the doctor only prescribed amoxicillin. The said antibiotic did not help to remedy the pain from the claimant's ear infection.

8) Paragraph 73: Although prescribed, DOCS failed to provide the claimant with an ear drop which was prescribed by the doctor who performed the surgery. As a result, the claimant developed severe ear infections in both ears.

9) Paragraph 81: That DOCS medical care and treatment of the claimant was negligent, reckless and careless and departed from accepted standards of proper medical care and treatment in that the doctors negligently misdiagnosed the claimant's ear infections, and there was a negligent failure to properly diagnose and treat the patient, and defendant otherwise failed to employ reasonable and proper steps, procedures, and practices for the health, welfare and safety of the claimant and to avoid injury to him.

10) Paragraph 83: Solely as a result of the defendant's negligence and the negligence of the defendant medical group's staff, the claimant was caused to and will continue to suffer severe and extreme pain and discomfort, possible loss of hearing, personal injuries, severe mental and emotional distress, lost earnings and additional expenses.

Notwithstanding claimant's advocacy to the contrary during and subsequent to trial, and regardless of how claimant chooses to characterize his causes of action, any fair reading of the claim or review of the trial evidence makes clear that the gravamen of the claim is founded in medical malpractice and/or medical negligence involving medical issues, "not within the ordinary experience and knowledge of lay persons" (Wells, 228 AD2d at 582). The claim is infused with allegations of claimant being denied medical care entirely or being provided inadequate medical care.

Claimant's posttrial suggestion that defendant's medical treatment of claimant involved ministerial acts is unpersuasive. The decisions any medical care provider makes concerning if, when and how medical care is to be provided a patient are, by their very nature, discretionary decisions.

Similarly, claimant's posture that the claim involves the doctrine of res ipsa loquitur is inapposite, unsupported by the facts or trial record.

Claimant's description of defendant's actions as deliberate indifference to his medical needs, under the facts presented here, is simply an alternate manner by which to accuse defendant of failing to provide claimant appropriate and adequate medical care.

Both by the express language and terms of Judge Sise's Decision and Order dated May 8, 2007, and by the clear nature of claimant's allegations, claimant was obligated to prove that defendant's medical care of him, related to his ear condition and related to the condition of his spine, back and leg, including the failure of defendant to provide claimant with a back brace for which he had been fitted, constituted medical malpractice or medical negligence. The trial record was devoid of expert medical proof that: a) defined the standard of care to which claimant was entitled; b) established defendant's actions, or inactions, in its treatment of claimant's medical conditions deviated from the standard of care owed claimant; or, c) demonstrated defendant's medical care of claimant, if found to be substandard, proximately caused claimant any injury or damage. Additionally, expert medical proof was ever more necessary in this case by reason of claimant's preexisting back and spinal injuries and pain, and a previously endured episode of vertigo while jailed in Suffolk County.

The only remaining issue of the claim, necessarily limited by the terms of Judge Sise's Decision and Order to the allegedly negligent conduct of defendant from October 5, 2004 on, involves claimant's allegations of being forced by defendant to perform labor in contravention of a medically-ordered "no-work" directive of Dr. Galeno, and the spine/back injuries he allegedly suffered thereby. This aspect of the claim fails both as a matter of proof and as a matter of law.

Initially, despite claimant's insinuations to the contrary, the first time, post-surgically, that Dr. Galeno issued a "no-work" directive was February 9, 2005 (Exhibit 14, last page, and EBT of Dr. Rosenfield, Exhibit 13, p 40, lines 6-24). The February 9, 2005 directive of Dr. Galeno was issued while claimant was housed in Greene Correctional Facility Special Housing Unit (SHU), and more than three months after defendant's allegedly enforced labor at McGregor allegedly caused claimant's spinal screws to fail. Further contradicting claimant's assertions about "no-work" orders are two determinations made by Dr. Crook that concluded "no-work" status for claimant was not medically indicated, first on October 26, 2004, and then again on November 3, 2004 (Exhibit 7 and Exhibit 12, EBT of Dr. Crook, pp 34-35, respectively). Finally, claimant was housed in Greene Correctional Facility SHU from November 3, 2004 until March 14, 2005 (Exhibit B and Exhibit 13, EBT of Dr. Rosenfield, pp 40-42), and that as a result of being housed there, claimant had no permitted or possible work obligations during that period of time (Trial Transcript p 128, lines 16-18 and Exhibit 13, EBT of Dr. Rosenfield, pp 40-42). As a matter of proof, claimant has failed to prove by a preponderance of the credible evidence that defendant obligated him to perform labor in contravention of Dr. Galeno's "no-work" directive of February 9, 2005.

Beyond the foregoing, claimant's allegations of the injuries he sustained by reason of enforced labor in contravention of Dr. Galeno's order fail both as a matter of proof and as a matter of law. Other than claimant's speculative and imprecise testimony, which the Court declines to credit, there was no proof presented to establish when, how or why the screws implanted in claimant's spinal surgery failed. This alone constitutes a failure of proof on this point.

Further, there was no expert medical proof that defendant's conduct related to the "no-work" issue, even if adjudged to be negligent, proximately caused any of claimant's injuries. The Court finds that expert medical proof, not present here, would be required to prove that any of claimant's injuries, whether failed spinal screws or any other claimed injuries, were proximately caused by defendant's conduct in contravention of Dr. Galeno's "no-work" order, as these are conclusions beyond the ordinary experience and knowledge of a lay person.

By reason of all of the foregoing, the claimant has failed to prove any aspect of his claim by a preponderance of the credible evidence. The claim is accordingly, in all respects, dismissed.

All motions not previously decided, including applications for the admission into evidence of marked exhibits, upon which the Court reserved decision, are hereby denied.

Let judgment be entered accordingly.

March 25, 2015

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims


Summaries of

DeMaille v. State

New York State Court of Claims
Mar 25, 2015
# 2015-041-508 (N.Y. Ct. Cl. Mar. 25, 2015)
Case details for

DeMaille v. State

Case Details

Full title:VINCENT DEMAILLE v. THE STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Mar 25, 2015

Citations

# 2015-041-508 (N.Y. Ct. Cl. Mar. 25, 2015)