New York State Court of Claims

New York State Court of Claims
WHALEY v. THE STATE OF NEW YORK, # 2019-029-078, Claim No. 130729


The pro se claim by an inmate alleged injuries caused by negligence of the medical staff at Bedford Hills Correctional Facility in failing to remove sutures in claimant's wrist after surgery to drain a ganglion cyst. After a video trial, the court found defendant not liable for negligence as claimant needed, but failed, to submit expert testimony to prove causation.

Case information

UID: 2019-029-078
Claimant short name: WHALEY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130729
Motion number(s):
Cross-motion number(s):
Claimant's attorney: CRYSTAL WHALEY, PRO SE
By: Dorothy M. Keogh, Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 10, 2019
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The claim was filed pro se on December 18, 2017, alleging negligence in the failure to schedule the post-surgical removal of, and delay in removing, claimant's sutures. A video trial on liability was held on September 19, 2019.

Claimant testified on her own behalf and the portion of her medical record annexed to the claim was admitted as Exhibit 1.(1) Defendant did not call any witnesses or introduce any exhibits. The defense case consisted of defense counsel reading several entries from claimant's ambulatory health records admitted as claimant's Exhibit 1.

Claimant testified that on December 9, 2015, she underwent surgery at Mt. Vernon Hospital to drain a ganglion cyst on her left wrist. She was supposed to have the sutures removed two weeks later according to the doctor's order and State procedure. However, they were not removed until February 11, 2016. Dr. Magill, the hand specialist, noted that the sutures were embedded and he could feel them on her wrist. He prescribed a second surgery to remove them and said it would take about three months for the State to approve it. She had the second surgery six months later. Before that her arm became infected. She was sent to the hospital as an emergency and was treated with intravenous antibiotics which she continued to take by mouth for several months.

On cross-examination, defendant read into the record several excerpts from claimant's Progress Notes made on March 3, 8, 9 and 10, 2016. These excerpts note that claimant was not complaining of pain and her wrist was not swollen at the time. The notes were made while claimant was under observation and awaiting her second surgery.

It is well settled that the State owes a duty to its incarcerated citizens to provide them with adequate medical care (see Mullally v State of New York, 289 AD2d 308, 308 [2d Dept 2001]; Kagan v State of New York, 221 AD2d 7, 8 [2d Dept 1996]). To prove that the State failed in this duty and committed medical malpractice, a claimant must show with expert medical evidence that defendant departed from the accepted standard of medical care, and that said departure was a proximate cause of the injury (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]; Dray v Staten Is. Univ. Hosp., 160 AD3d 614, 618 [2d Dept 2018], Matter of Perez v State of New York, 293 AD2d 918 [3d Dept 2002]; Kaminsky v State of New York, 265 AD2d 306 [2d Dept 1999]).

The claim is for negligence and not for medical malpractice, but under the circumstances, claimant needed to present expert testimony to prove causation. A cause of action sounding in medical negligence assumes that the claimant's allegations are determinable on common knowledge alone, without the use of expert testimony (see Halas v Parkway Hosp., 158 AD2d 516, 516-517 [2d Dept 1990]; Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256 [1st Dept 1986]). " 'The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts' " (Estate of Bell v WSNCHS N., Inc., 153 AD3d 498, 499 [2d Dept 2017], quoting Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]). " 'Where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is required to establish that defendant's alleged negligence . . . caused or contributed to claimant's injuries' " (DeMaille v State of New York, 166 AD3d 1405, 1406-1407 [3d Dept 2018], quoting Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007]; Lyons v McCauley, 252 AD2d 516, 517 [2nd Dept 1998], lv denied 92 NY2d 814 [1998]).

The court finds claimant was forthright and credible in her testimony, which was corroborated by her ambulatory health records. The court finds that claimant succeeded in proving, by a preponderance of the evidence, that on December 9, 2015, she underwent a surgical procedure at Mt. Vernon Hospital to drain a ganglion cyst on her left wrist. Although a doctor ordered that claimant have a follow-up visit at the January clinic, she was not seen by the hand specialist until February 11, 2016. Claimant's ambulatory health records regarding the first surgery and post-surgical care do not contain instructions on removal of the sutures. Several sutures in claimant's wrist were visible to the medical staff for several months after the first surgery. Her wrist became swollen and painful, and claimant experienced numbness and tingling in her left arm. On February 26, 2016, claimant was sent to the ER with a retained suture, diagnosed with cellulitis, given intravenous antibiotics, continued on antibiotics and monitored in the clinic at Bedford Hills Correctional Facility, and referred for a second surgery scheduled for May 11, 2016 to explore the wound on her wrist. No suture was found in the wound during the second surgery.

Claimant argued at trial that defendant was negligent because sutures from the first surgery were not removed, her left wrist became infected, and a second surgery was necessary to remove the retained sutures. Claimant did prove that at least some of the sutures were left in her arm, a fact defendant did not dispute at trial. The court also finds claimant's records establish the likelihood that none of her sutures were removed. In a Request and Report of Consultation, claimant is referred on December 10, 2015, the day after the surgical procedure, for a follow-up at the "January clinic" for "orthopedics-hand." However, the appointment noted on the sheet is for February 11, 2016, and to the extent the court can read the February 11, 2016 handwritten consultant report on the lower half of the sheet, it shows the consult is the first follow-up after the surgery two months earlier, and it states, inter alia: "what happened to suture [. . . ] ? tip of suture felt [. . . ] Plan: Exploration of wrist [. . . ]."

Nevertheless, claimant needed expert testimony to prove that the failure to remove the sutures from the first surgery was negligent, and that the negligence proximately caused the infection in claimant's left wrist and the second surgery. That type of determination involves knowledge of applicable standards for suture removal in the particular circumstances, which could be based on the type of suture used and the particular surgical procedure, as well as other factors outside the common everyday experience of the trier of fact.

Even if the court were to find defendant was negligent in failing to remove some or all of claimant's sutures within a certain period of time, expert testimony would be necessary to establish that the failure proximately caused claimant's infection. Connecting claimant's post-operation infection to one or more retained sutures involves diagnostic expertise and knowledge of the factors related to infectious diseases, and the submission of additional evidence necessary for an expert evaluation (see De Falco v Long Is. Coll. Hosp., 90 Misc 2d 164 [1977], affd 62 AD2d 1180 [1978] [plaintiff needed expert to prove that negligent placing of soiled eye patch over eye caused the infection that resulted in injury]). As for the second surgery, contrary to claimant's expressed belief that it was to remove her sutures, her evidence established it was exploratory in nature, its main impetus was the persistent swelling and infection in her wrist, and ultimately no retained sutures were located.

Finally, the court has considered whether the sutures could be considered foreign objects left in place. However, the Court of Appeals has clearly stated that this is not appropriate (Walton v Strong Mem. Hosp., 25 NY3d 554 [2015]).

The court recognizes that claimant endured a significant amount of pain and discomfort, but "the law does not require a physician to guarantee a good result [. . . and] 'a bad result does not, ipso facto, support a claim for medical malpractice' " (Saliaris v D'Emilia, 143 AD2d 996, 996-997 [2d Dept 1988], quoting Schoch v Dougherty, 122 AD2d 467, 468 [3d Dept 1986], lv denied 69 NY2d 605 [1987]).

Accordingly, the court finds defendant not liable for negligence and dismisses Claim No. 130729. Let judgment be entered accordingly.

October 10, 2019

White Plains, New York


Judge of the Court of Claims

1. Exhibit 1 contains "Progress Notes," "Request and Report of Consultation" sheets, "Health Provider Order Sheet(s)," "Operative Note(s)," "Admission and Discharge Summary" and other records.