Opinion
# 2015-015-596 Claim No. 115502
03-03-2015
DAVID RODRIGUEZ v. THE STATE OF NEW YORK
David Rodriguez, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Anthony Rotondi, Esquire Assistant Attorney General
Synopsis
Pro se inmate's claim alleging delay of treatment for an ear infection was dismissed after trial.
Case information
UID: | 2015-015-596 |
Claimant(s): | DAVID RODRIGUEZ |
Claimant short name: | RODRIGUEZ |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 115502 |
Motion number(s): | |
Cross-motion number(s): | |
Judge: | FRANCIS T. COLLINS |
Claimant's attorney: | David Rodriguez, Pro Se |
Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Anthony Rotondi, Esquire Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | March 3, 2015 |
City: | Saratoga Springs |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant, a pro se inmate, seeks damages for defendant's alleged delay in providing him treatment for an ear infection which resulted in a hearing loss.
Claimant testified that beginning on December 4, 2005 he requested medical treatment for pain and swelling in his left ear. Claimant was seen at various times by a nurse or physician who he alleges treated him for a cold rather than an ear infection. He testified that in the months that followed, he continued to request sick call for his ear condition and filed various grievance complaints relating to the lack of medical treatment. Claimant stated that it was not until July 2006 that he was referred to an audiologist for a hearing examination which determined he was suffering from tinnitus. His complaints regarding an ear infection remained unaddressed.
On cross-examination claimant conceded that none of his medical records document an ear infection and he has no witnesses regarding his medical condition.
Defendant called Ted Nesmith, a Physicians' Assistant at Great Meadow Correctional Facility, to testify on its behalf. Mr. Nesmith testified that on February 6, 2006 claimant was seen by Dr. Palono for complaints of left ear "fullness". According to the medical note, the examination was normal and claimant was prescribed a decongestant (see Exhibit C). Based upon Mr. Nesmith's review of claimant's medical records, he testified that claimant was seen by both a physician (Exhibit D) and an audiologist (Exhibit E) in June and July of 2006, respectively. The audiologist's report notes a hearing loss in the claimant's right ear consistent with noise exposure and states that the severity of the claimant's hearing loss in his left ear was exaggerated. He suggested repeat testing in three months, with the recommendation for a bilateral hearing aid (Exhibit E).
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 [2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]). 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 inmate'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 both an unreasonable delay in providing medical attention and that any such delay was the proximate or aggravating cause of his ensuing hearing loss (see Lowe v State of New York, supra). The lack of medical evidence establishing that claimant suffered from an ear infection or that any such infection was the proximate or aggravating cause of his hearing loss requires dismissal of the negligence claim as a matter of law.
To the extent the claim may be read to include a cause of action premised upon a violation of the US Constitution, this Court lacks jurisdiction (Will v Michigan Dept. of State Police, 491 US 58 [1989]; Carver v State of New York, 79 AD3d 1393 [3d Dept 2010]). Moreover, a claim premised upon an alleged violation of the NYS Constitution will not lie where, as here, alternative common-law remedies are available (Brown v State of New York, 89 NY2d 172 [1996]; Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]).
Lastly, with respect to claimant's fleeting references in his claim to a violation of the Americans with Disabilities Act , assuming arguendo that such a claim may be asserted against the State in the Court of Claims (see Carlson v State of New York, 34 Misc 3d 242 [Ct Cl 2011]), claimant failed to plead and prove sufficient facts to establish such a cause of action. Even if claimant is a qualified individual with a disability within the meaning of the ADA, he failed to allege in the claim or prove at trial that he was being "excluded from participation in, or be[ing] denied the benefits of the services, programs, or activities" by reason of his disability (42 USC § 12132; Clarkson v Coughlin, 898 F. Supp. 1019, 1037 [SDNY 1995]).
Based on the foregoing, the claim is dismissed. All motions not addressed herein are denied.
Let judgment be entered accordingly.
March 3, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims