Opinion
# 2016-015-605 Claim No. 117104
02-01-2016
MARK W. LEVOLA v. THE STATE OF NEW YORK
Mark W. Levola, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Thomas M. Trace, Esquire
Synopsis
Claim for medical malpractice and negligence of prison staff was dismissed following trial.
Case information
| UID: | 2016-015-605 |
| Claimant(s): | MARK W. LEVOLA |
| Claimant short name: | LEVOLA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117104 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Mark W. Levola, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Thomas M. Trace, Esquire |
| Third-party defendant's attorney: | |
| Signature date: | February 1, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, asserts a claim for medical malpractice and negligence by the Department of Corrections and Community Supervision (DOCCS) in failing to treat, or to properly treat, various maladies while he was an inmate in its custody. The claim was tried on November 17, 2015.
The claim also alleges damages for the use of excessive force and the loss of personal property by correction staff. No evidence was proffered in support of these allegations at trial and these claims are therefore abandoned.
Claimant was the only witness to testify at trial and certain medical records were received in evidence subject to defendant's objection that they were inadmissible as hearsay. Claimant testified that he was received in DOCCS' custody in March 2004 and that prior to his incarceration he was healthy except for a left groin strain. Claimant testified that following his incarceration, he pulled a groin muscle while boarding a bus, experienced rectal bleeding, swelling of various joints and extremities and suffered severe debilitating neck pain following a whiplash injury in 2010. He stated that DOCCS ignored his complaints of pain and various abnormal test results and improperly treated him with antibiotics. Claimant testified that DOCCS delayed for two years in arranging an orthopedic consultation, which finally occurred in 2006. The orthopedist indicated, according to the claimant, that his left groin pain could be a hernia or tear or a combination of both and an arthrogram was performed which was abnormal. Nevertheless claimant was drafted out of the facility and his medical ailments were ignored. Claimant testified that he suffers from degenerative arthritis in all of his joints, that nerve conductive tests confirmed that he had nerve damage, and that his left leg "shrunk" during the course of his incarceration. He described the pain as "terrible" and stated that nerve block injections in 2005 caused his knees to swell, and although his legs and feet became swollen and discolored, DOCCS did nothing. Claimant also testified that he had polyps removed from his colon in 2009. Claimant testified further that he is in daily pain for which a regimen of pain medication is required.
No expert medical testimony was presented at trial and claimant's medical records are not certified as required by CPLR 4518 (c). Consequently, the records are inadmissible hearsay.
The State has a fundamental duty to provide adequate medical care to inmates in its prisons without undue delay (Auger v State of New York, 263 AD2d 929 [3d Dept 1999]; Kagan v State of New York, 221 AD2d 7 [2d Dept 1996]). This duty has been defined in terms of both negligence and malpractice (Lowe v State of New York, 35 AD3d 1281, 1282 [4th Dept 2006]).
Where claimant's allegations relate entirely to the professional skill and judgment of his treating professionals, a medical malpractice cause of action is alleged (Maki v Bassett Healthcare, 85 AD3d 1366 [3d Dept 2011], lv dismissed 17 NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]). To establish a prima facie case of medical malpractice, the claimant is "required to prove, through a medical expert, that [the defendant] breached the standard for good and acceptable care in the locality where the treatment occurred and that [this] breach was the proximate cause of [his] injury" (Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]; see also Morgan v State of New York, 40 AD2d 891 [3d Dept 1972], affd 34 NY2d 709 [1974], cert denied 419 US 1013 [1974]; Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]; Berger v Becker, 272 AD2d 565 [2d Dept 2000]; Perrone v Grover, 272 AD2d 312 [2d Dept 2000]; Gibson v D'Amico, 97 AD2d 905 [3d Dept 1983], lv denied 61 NY2d 603 [1984]). Where only nondiscretionary medical protocols are alleged to have been breached, a cause of action for ministerial neglect is stated (Kagan, 221 AD2d at 10-11). Under either theory, liability does not attach absent competent medical evidence that the defendant's negligence was a proximate cause of the claimant's ensuing medical problems (Myers v State of New York, 46 AD3d 1030, 1031 [3d Dept 2007]; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]; Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]).
Here, claimant failed to establish a deviation from the applicable standard of medical care through the submission of medical evidence and presented no evidence regarding a violation of nondiscretionary medical protocols. The lack of medical evidence or evidence of a violation of nondiscretionary protocol requires dismissal of the claim as a matter of law. Notably, even if the reports and records submitted by the claimant were admissible, nothing in the reports establishes medical malpractice or violation of a nondiscretionary medical protocol, or that any such conduct was a proximate cause of claimant's ensuing injuries and pain. As a result, defendant's motion for a directed verdict is granted and the claim is dismissed.
Let judgment be entered accordingly.
February 1, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims