Opinion
# 2017-015-624 Claim No. 114048
03-15-2017
ROBERT SUMMA v. THE STATE OF NEW YORK
Robert Summa, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Anthony Rotondi, Esquire Assistant Attorney General
Synopsis
Pro se inmate’s claim for medical malpractice was dismissed following trial as he failed to present expert medical evidence demonstrating a deviation from the applicable standard of care.
Case information
| UID: | 2017-015-624 |
| Claimant(s): | ROBERT SUMMA |
| Claimant short name: | SUMMA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 114048 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant’s attorney: | Robert Summa, 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 15, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim alleges the claimant suffered damages as a result of a failure to treat an injury to the 4th finger of his left hand which occurred on October 5, 2006 while playing flag football at Washington Correctional Facility. The trial of this matter was held on December 15, 2016.
As indicated in his claim, claimant testified at trial that on October 5, 2006 he injured his finger while playing flag football. The following day he reported to the infirmary where he was seen by Nurse Kingsley. The nurse taped the claimant’s injured finger but no splint was applied nor was the finger taped to adjoining fingers in order to immobilize it. An X-ray of the claimant’s finger was taken at Great Meadow Correctional Facility on November 1, 2006. On November 8, 2006 a splint was applied to the claimant’s finger which, at that time, was bent at a 90-degree angle. According to the claimant, when the X-ray report was read on November 15, 2006 it was determined that no fracture was found. Claimant discussed the X-ray with a nurse at sick call on November 17, 2006 at which time a medical equipment permit authorizing his continued use of the splint was renewed. The splint was ultimately removed on November 27, 2006, and the claimant was seen by Dr. Trachtman on January 4, 2007. Claimant testified that Dr. Trachtman authorized a consult with an orthopaedic surgeon and that at the time his finger was swollen and bent at a 90-degree angle. Claimant was seen by the orthopaedic surgeon in May of 2007 and surgery was ordered for what the claimant described as “a severe contracture of my fourth finger”. Surgery was performed at Kingston Hospital on June 25, 2007 and a pin was placed in the claimant’s finger to keep it straight, although the claimant testified that the finger is still not straight, that he continues to experience pain and is limited in the use of his hand, particularly in that he is unable to play the guitar.
On cross-examination the claimant testified that his finger was taped by a nurse the day following his injury and that he was sent for X-rays on two different occasions. Claimant stated that his finger should have been splinted by the nurse rather than taped but agreed that he failed to offer any expert medical proof on the issue.
Defendant moved to dismiss the claim for failure to establish a prima face case of medical malpractice regarding the timeliness and appropriateness of the treatment provided. The Court reserved on the motion.
The law applicable to such claims is well settled. 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]). “Conduct may be deemed malpractice, rather than negligence, when it ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician’ ”(Scott v Uljanov, 74 NY2d 673, 674-675 [1989]; see also Bleiler v Bodnar, 65 NY2d 65, 72 [1985]). Where the 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]). 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 negligence was a proximate cause of the claimant’s ensuing medical problems (McFadden v State of New York, 138 AD3d 1167 [3d Dept 2016], appeal dismissed 28 NY3d 947 [2016]; Knight v State of New York, 127 AD3d 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 [2015]; 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’s allegations arise from the rendition of medical treatment rather than the breach of a nondiscretionary medical protocol. To prevail, claimant was therefore required to prove, through a medical expert, that the defendant breached the applicable standard for good and acceptable care. Inasmuch as no expert medical evidence was offered, defendant’s motion to dismiss the claim must be granted and the claim dismissed.
Moreover, even if the claim could be construed as alleging a violation of a nondiscretionary medical protocol, the absence of medical evidence demonstrating that the violation was a proximate cause of his injury is equally fatal to the claim.
Accordingly, defendant’s motion to dismiss the claim for failure to establish a prima facie case is granted, and the claim is dismissed.
Let judgment be entered accordingly.
March 15, 2017
Saratoga Springs , New York
Judge of the Court of Claims