New York State Court of Claims

New York State Court of Claims
LEVOLA v. THE STATE OF NEW YORK, # 2018-044-006, Claim No. 115904


After trial, Court dismissed claim for medical malpractice due to pro se claimant's failure to establish accepted standard of care through expert testimony. Medical reports opining that the treatment claimant received deviated from the standard of care were meaningless without affording the opining party the opportunity to cross-examine the author.

Case information

UID: 2018-044-006
Claimant(s): MARK W. LEVOLA
Claimant short name: LEVOLA
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115904
Motion number(s):
Cross-motion number(s):
Claimant's attorney: MARK W. LEVOLA, pro se
BY: Mark Sweeney, Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 2, 2018
City: Binghamton
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, a former inmate proceeding pro se, seeks damages for medical malpractice relating to certain gastrointestinal and orthopedic symptoms occurring on or after September 10, 2004 while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira), as well as at other correctional facilities in which he was subsequently incarcerated. A bifurcated trial of the claim was held in the Binghamton District of the Court of Claims on April 17, 2018. This decision solely addresses the issue of liability.(1)

At trial, claimant testified that around the time of his incarceration (in April 2004), he developed various symptoms of an unknown illness. He said that prior to that time he had been very healthy, working as a laborer at physically intense jobs. He was hospitalized for three weeks upon his admission at Elmira with various symptoms, which included bleeding from the rectum, burning and swelling of his legs and feet, and pain in his left side, groin and hip area. He was transferred to another facility before being released from the Elmira infirmary. His left knee became very painful in late 2004, to the point where he could not put weight on it and it would buckle underneath him. He eventually started bleeding from his sinuses, and his shoulders, neck, back and joints started to hurt. He believes he had some sort of infection.

In early 2005, he started having chest pains. He said that he also had both X rays and an MRI of his knee in 2005, which showed various infirmities including tears, sprains and joint degeneration. He said a DOCCS doctor drained the knee twice. He was eventually given a knee brace, although he said the brace did not stabilize the knee. He said an MRI was performed (presumably the one in 2005) and the doctors did nothing to address the problems diagnosed by the test, instead telling him he could "take care of it when [he] got out."(2)

Claimant said that he repeatedly complained about these numerous symptoms throughout 2005, and indicated that the voluminous medical records he submitted into evidence would substantiate that he made these complaints. At some point in 2005 a "nerve block" procedure was performed to ease the pain in the left side of his groin, but that the procedure did not help. He said that in 2006 he was rising from a chair, felt a pull in his left groin/side, and his symptoms intensified. He said that the same sensations occurred repeatedly when he stood up.

Claimant saw Dr. Rubinovich in April 2006 and had an arthrogram. Rubinovich advised him that he had a possible hernia or a possible labral tear in the hip, or both. Claimant said that immediately after this diagnosis he was shipped to another facility, and had to start over in terms of obtaining a diagnosis. He said that DOCCS rules state that an inmate should stay at a facility until medical issues are resolved, but they "shipped [him] out over and over."

Claimant said that in 2007 he had rectal bleeding, so a colonoscopy was performed which indicated he had hemorrhoids. He said he had no treatment for them at that time. Through the intervention of his brother, his medical records were reviewed in 2007 by a Dr. Stuart Finkel.(3) Claimant said that Finkel's report indicated that claimant should have another colonoscopy, and any existing polyps should be removed.(4) However, he did not have another colonoscopy until 2010, at which time a polyp was removed. Claimant said his rectal bleeding has "faded away" since the second colonoscopy.

Claimant said he had multiple neurological conduction tests in 2008, and was given a wheelchair in June of that year. He said the wheelchair helped a great deal, because he was having serious mobility issues.

Claimant stated he did not have many problems in 2010 (he did not indicate that any medical problems occurred in 2009), and he was released from prison in 2011. Once released from prison, he had both the labral tear and the hernia repaired, as well as a knee replacement. Also since being released he has been consulting with a neurologist in an attempt to diagnose the burning pain in his feet.

Claimant concluded by stating that he had complained over and over and over about his multiple medical problems, but was not treated for them. He testified that the doctors acknowledged that he had knee, hip and neck problems, as well as other issues. He then said that the doctors tried "all kinds of treatments but they didn't work." He said he was healthy until he was incarcerated, and completely lost his health after that. He now spends all his time trying to deal with and resolve his medical problems.

On cross-examination, claimant acknowledged that prior to his incarceration he had mild arthritis in his left knee after having twisted it, and had also had a hernia which had been repaired in 1999. He said that when he was transferred from Elmira to Greenhaven Correctional Facility three weeks after his initial incarceration, his medications (which he stated were antibiotics) were not transferred with him. When asked what condition he was taking the antibiotics for, he said it was an infection. When asked where the infection was, he said "my body."

In response to a question about what medical treatment he received while incarcerated, he gave inconsistent statements. He did acknowledge that he saw some sort of "specialist" at Riverview Correctional Facility. He denied having ever refused care by Dr. Seidman. He said that most of his "suffering" took place between 2004 and 2006, when he had "an infection or whatever it was."

Claimant rested his case at the close of his testimony. Defendant called no witnesses. Counsel for defendant then moved to dismiss the claim, arguing that claimant had failed to establish a prima facie case, having introduced no expert testimony to show that defendant's care and treatment of claimant deviated from accepted medical practice, or that such deviation was the proximate cause of claimant's injuries. Counsel further contended that claimant had testified at length regarding treatment and medical devices he had received while in DOCCS' custody, and the issue of whether that treatment was appropriate should be the subject of expert testimony, rather than such a determination being made by a layperson. Counsel also noted that many of these issues had already been litigated in another claim, citing Levola v State of New York, UID No. 2016-015-605 (Ct Cl, Collins, J., Feb. 1, 2016), which was dismissed due to the absence of the requisite expert medical testimony. Claimant responded that the previous litigation differed from this claim in that claimant has now introduced into evidence letters from three experts.(5) Claimant again argued that DOCCS medical personnel had been aware of his knee condition, the hernia and the labral tear in his hip, but did nothing. He said that these matters were addressed in a matter of months after his release. The Court reserved decision on the motion.

Initially, claimant's testimony was both inconsistent and differed - in some respects significantly - from the (uncertified) medical records he introduced.(6) He vacillated from testifying that he was not treated for his medical issues to stating that he was treated, but that the treatments were not helpful. Further, many records reference two notable pre-incarceration incidents which may well have been the source of many of claimant's physical problems: a fall from a roof construction site which shattered claimant's pelvis in the late 1970's,(7) and an unspecified incident with a bicycle shortly prior to claimant's incarceration.

Various medical reports from March 2004 (the month prior to claimant's incarceration) notes that claimant had "significant history for over 25 years of pain in his neck and back . . . [with a] previous history of disc fusion in his neck. . . . X-RAYS: Taken today of cervical spine show multiple levels of degenerative disc disease."(8) Further, claimant "had a left-sided hernia repair in 2000. He has complained of a painful lump that occurs in the area."(9) Moreover, there are repeated notations throughout the medical records from claimant's incarceration that his complaints could not be objectively substantiated, as well as observations of malingering.

Notably, the neurologist (Dr. Twydell) retained by claimant in 2010 to independently evaluate his condition stated in his report as follows:

[i]t is clear that upon reviewing the medical record . . . that there were, at times, feelings by various health care providers that [claimant] was malingering. This seems to have come from [claimant's] litany of unrelated complaints, and his perseveration and delusional thinking that they are all interconnected. The combination of [claimant's] misconceptions about his multiple problems combined with the question of a somatoform disorder may have resulted in suboptimal treatment of his worsening orthopedic problems. This was more likely than not compounded by his lack of compliance with pharmacological and physical therapy, and refusal of additional orthopedic evaluation.(10)

The records indicate that claimant underwent innumerable diagnostic tests, laboratory workups and specialist consultations. He was prescribed many different medications, which he routinely refused to take. He repeatedly refused to cooperate with advised medical treatment.(11)

"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" including proper diagnosis and treatment (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]). The distinction between medical malpractice and medical negligence is subtle. The Court of Appeals has recognized that although a medical provider "in a general sense is always furnishing medical care to patients . . . not every act of negligence toward a patient would be medical malpractice" (Bleiler v Bodnar, 65 NY2d 65, 73 [1985]). When the allegedly wrongful conduct "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician," the cause of action is for medical malpractice rather than negligence (id. at 72; see Scott v Uljanov, 74 NY2d 673 [1989]). "By contrast, when 'the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [provider's] failure in fulfilling a different duty,' the claim sounds in negligence" (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] quoting Bleiler, 65 NY2d at 73). Malpractice involves "a matter of medical science or art requiring special skills not ordinarily possessed by lay persons," whereas in the instance of medical negligence, "the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts" (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]).

In a medical malpractice case, claimant has the burden of proving, through the use of expert testimony, that defendant's conduct was a deviation from the accepted standard of care and that such deviation caused claimant's injury (see Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916, 917 [3d Dept 2000], lv denied 95 NY2d 751 [2000]; Wahila v Kerr, 204 AD2d 935, 937 [3d Dept 1994]).

It is readily apparent that claimant was seen by doctor after doctor during his incarceration for his nearly innumerable ailments. It is also clear that the genesis of these ailments occurred prior to his incarceration. While many issues were diagnosed and treated, claimant seemed to prefer complaining about them instead of cooperating with attempts to remedy them.(12) Claimant's allegations are clearly in the nature of medical malpractice, rather than medical negligence. Consequently, claimant was required to present expert testimony that the treatment he received was a deviation from the accepted standard of care, and that it was the proximate cause of his injury or injuries.

Claimant's contention - that the "expert reports" he produced(13) constitute the requisite expert testimony sufficient to show that the treatment claimant received deviated from the accepted standard of care - is unavailing. Parties have an undeniable right to cross-examine an opposing witness, and the simple production of a report without that opportunity cannot constitute expert testimony. While not identical, the situation is analogous to that found in the case of Currie v State of New York (34 AD2d 1027 [3d Dept 1970]), where the Court addressed the use of an expert appraisal in making a determination regarding the valuation of an appropriation in a situation where the expert himself did not testify. The Court stated: "[t]he rule [regarding exchange of expert appraisals] clearly was not intended to place evidence automatically before the court so as to enable a party to avoid cross-examination" (id.). In a different decision on the same issue, the Court noted: "[t]he appraisal in and of itself is not designed to take the place of evidence. Rather, its function is to supplement the evidence given by the person under whose direction it is prepared. The appraisal should be utilized as a tool which, by adequate examination of its author, helps explain fully to the trial court what the theory of the party introducing the appraisal is" (Homer v State of New York, 36 AD2d 333, 335 [3d Dept 1971] [emphasis supplied] and [citation omitted], affd 30 NY2d 723 [1972]). The same theory applies here. Production of a medical report containing opinions is meaningless without affording the opposing party the opportunity to cross-examine the author, determine the bases for those opinions, and make appropriate challenges thereto. It consequently cannot be considered "expert testimony" in any sense of the words.(14)

Accordingly, the Court finds that claimant has failed to establish the appropriate standard of care through expert testimony. Whether the treatment claimant received was a deviation from the accepted standard of care is not within the knowledge of a layperson. The failure to offer an expert opinion is fatal to claimant's claim for medical malpractice. Defendant's motion to dismiss the claim is granted.(15) Any motions not heretofore determined or upon which reservation was made are hereby denied.

Let judgment be entered accordingly.

May 2, 2018

Binghamton, New York


Judge of the Court of Claims

1. For a detailed discussion of the tortured procedural history of this claim, see Levola v State of New York (Ct Cl, Dec. 15, 2010, Schaewe, J., Claim No. 115904, Motion No. M-78250).

2. All quotes herein are taken from the Court's notes regarding the proceeding, unless otherwise indicated.

3. Notably, Finkel did not personally examine claimant.

4. Counsel for defendant objected to claimant's attempt to use a medical report as an expert opinion without providing the expert to be cross-examined. The Court sustained the objection.

5. These letters will be discussed at more length infra.

6. Surprisingly, counsel for defendant failed to object to the admission of uncertified medical records. However, the Court will give them the weight it deems appropriate.

7. Claimant's Exhibit 10 at 10; Claimant's Exhibit 13C at 43.

8. Claimant's Exhibit 10 at 6.

9. Id. at 10.

10. Claimant's Exhibit 6-C at 9.

11. See, for example, Claimant's Exhibit 13C at 73.

12. see n11, supra

13. Claimant's Exhibits 6-A, 6-B and 6-C.

14. Moreover, in many instances, information contained in such reports would be "incomprehensible absent expert testimony" (People v Ramirez, 169 AD2d 573, 573 [1st Dept 1991], lv denied 77 NY2d 965 [1991]).

15. The Court need not address defendant's argument that collateral estoppel precludes relitigation of these issues. Moreover, such an argument would have been more appropriately made pursuant to a pre-trial motion for summary judgment.