Opinion
# 2011-049-108 Claim No. 111756
12-22-2011
FORD v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2011-049-108 Claimant(s): RICHARD FORD Claimant short name: FORD Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 111756 Motion number(s): Cross-motion number(s): Judge: David A. Weinstein Claimant's attorney: Richard Ford, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: December 22, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Richard Ford, pro se and incarcerated, brings this action to recover damages for alleged malpractice that took place during surgery performed on him at Southport Correctional Facility (Southport) on November 11, 2004. This case is before the Court on defendant's motion to dismiss, made at the close of claimant's case. For reasons set forth below, defendant's motion is granted.
Ford filed the present action in December 2005. In October 2009, he moved for summary judgment. The Court denied the motion, finding that "[b]ased upon claimant's failure to provide an expert affidavit . . . he has not met his prima facie burden of establishing his right to judgment as a matter of law" (Ford v State of New York, UID No. 2010-032-010, Claim No. 111756, Motion No. M-77374, Hard, J. [Mar. 22, 2010]).
On August 17, 2011, Ford appeared at a scheduled trial in this matter, and indicated that he was seeking to retain counsel. As a result, the Court adjourned the proceeding for 90 days. The case was scheduled again for trial on October 25, 2011, prior to the termination of the 90-day period. Through an apparent miscommunication, defendant was informed that the trial would be adjourned, but Ford was not so informed. He appeared ready for trial on October 25, while the State was not prepared to present evidence. Ford nonetheless expressed a desire to go forward, and with both parties' express consent, the Court allowed claimant to present his evidence on that date.
Ford testified on his own behalf, as follows: On June 1, 2004, he had an altercation at Clinton Correctional Facility (Clinton), which resulted in a stab wound to his nose. Initially Ford was treated by the medical staff at Clinton, at which time he underwent an x-ray. He did not learn of the results of the x-ray until he was transferred soon after to Southport. Once there, he was informed that a metallic, foreign object had been lodged in the wound. Eventually, he was sent for surgery to remove the object, which had migrated to his lower right cheek. The surgery was performed by Dr. Pathak Kamal on November 11, 2004.
Ford stated that after the surgery a lump developed in the area between his nose and cheek, and he experienced significant pain in that area. Although the lump subsided, the pain did not go away. In addition, he suffered recurring numbness in his cheek, which continues to the present. Ford takes two medications to address these issues: Neurontin for nerve damage, and Ultram for his chronic pain.
Ford asked prison medical staff for reconstructive surgery to remedy his problem, but was told that the area was too delicate, and it would create more difficulties for him if another operation was performed. Ford testified that he was told directly by Kamal that he could not "fix" the pain and numbness, and Ford would "have to live with it."
Ford also introduced into evidence extensive excerpts from his medical records (Ex. 1), and various photographs showing his injuries (Exs. 2-3).
In addition, Ford also sought to introduce two certificates showing that while in prison he had completed a victim impact program, and an alcohol and substance abuse treatment program. Ford argued that the latter could show his past struggles with addiction, and therefore emphasize the negative impact of his present need for painkillers. Defendant objected on relevance grounds, and I reserved. I now sustain the objection, as these documents have no apparent bearing on the merits of claimant's malpractice claim.
At the conclusion of Ford's case,the State moved to dismiss on the ground that he had not made out a prima facie case, because he had failed to provide the "competent medical testimony" needed to succeed on a medical malpractice claim. Ford argued, in rebuttal, that he had presented medical records from numerous doctors and other medical professionals, and the prescriptions he has received for pain and nerve damage, his continued need for such medications, and his ongoing problems in the area where the surgical procedure was performed demonstrate that defendant's medical staff did not properly perform the surgery on November 11, 2004.
After testifying and introducing documentary evidence, Ford rested. Subsequently, after argument on the State's motion to dismiss, Ford stated that there was one additional witness he would like to bring, a correction officer whom, according to Ford, had heard the operating physician say that he could not fix Ford's condition, and he would have to "live with it." Ford contends that this testimony would show that the doctor "damaged him." Even if Ford's request were to be granted, notwithstanding his failure to take any steps to secure the witness prior to trial, it would not remedy the defects in his case. The proffered testimony did not come from an expert witness, and did not relate to the standard of care or proximate causation. In any case, claimant testified himself to this statement, which testimony I presume to be true for purposes of the present motion. Finally, as discussed below, Ford was given the opportunity to make application for additional witness testimony after trial, and declined to do so.
Subsequent to trial, Ford wrote the Court to request that he be given the opportunity to present the testimony of various other witnesses, including certain medical personnel. By letter dated November 10, 2011, the Court indicated that claimant's letter would be construed as a motion to reopen his case to present testimony of additional witnesses. The Court's letter further noted that such witnesses could only be called via subpoena ordered by the Court, and stated that claimant would have until December 12, 2011 to present the Court with an affidavit in accordance with CPLR § 2302 (b), to show why the testimony or material sought is necessary and relevant to the case. In a submission dated December 9, 2011, Ford withdrew his request for further testimony, stating in part that such testimony would be "redundant" of the exhibits presented at trial.
Discussion
Under CPLR § 4401: "Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue . . ." The Court must grant such a motion if, viewing the evidence in the light most favorable to the nonmoving party (in this case claimant), and drawing all inferences on that party's behalf, the Court concludes that "there is no rational process by which the fact trier could base a finding in favor of the nonmoving party" (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]).
In a medical malpractice action, "establishment of a prima facie case requires expert testimony that there was a deviation from accepted standards of medical care and that such deviation was the proximate cause of the injury" (Hytko v Hennessey, 62 AD3d 1081, 1083-1084 [3d Dept 2009]; accord Caruso v Northeast Emergency Med. Assoc., P.C., 85 AD3d 1502 [3d Dept 2011]). Such evidence is needed unless it concerns "matters within the ordinary experience and knowledge of laypersons" (Mosberg v Elahi, 80 NY2d 941, 942 [1992]). While this requirement is often insurmountable in cases brought by prisoners proceeding pro se, the law is clear that such claimants are subject to this requirement to the same extent as any other litigants (see Wood v State of New York, 45 AD3d 1198 [3d Dept 2007] [reversing trial court's finding of liability, because inmate's claim that defendant failed to properly diagnose and treat his medical condition required expert testimony]).
The elements that Ford must prove to establish a prima facie case - that the surgery performed on him deviated from the acceptable standard of care, and this deviation proximately caused the pain and numbness from which he now suffers - are clearly outside the understanding of laypersons, and therefore cannot be proven without expert testimony (see Fiore v Galang, 64 NY2d 999, 1001 [1985] [assessment as to whether performance of an operation was negligent is not within the "ordinary experience of a layperson"]).
Since expert testimony was needed to establish claimant's prima facie case, and such evidence was lacking, his case must be dismissed (see Caruso, supra [affirming directed verdict for defendant because plaintiff failed to present expert testimony showing proximate cause in malpractice action]; Weiss v Zuckerman, 114 AD2d 895 [2d Dept 1985] [affirming dismissal of malpractice claim at close of plaintiff's case, in light of absence of expert opinion evidence]).
In light of the foregoing, defendant's motion to dismiss claim no. 111756 is hereby granted.
Let judgment be entered accordingly.
December 22, 2011
Albany, New York
David A. Weinstein
Judge of the Court of Claims