Claimant, a pro se inmate, failed to present sufficient evidence at trial to support his claim of medical malpractice.
|Claimant short name:||FERREIRA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Gina M. Lopez-Summa|
|Claimant's attorney:||Carlos Ferreira, Pro Se|
|Defendant's attorney:||Hon. Eric T. Schneiderman, Attorney General
By: Heather Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 28, 2017|
|See also (multicaptioned case)|
Claimant, Carlos Ferreira, a pro se inmate, filed a claim on October 6, 2015 in which he alleged that defendant, the State of New York, through its agents, failed to protect him from an unprovoked assault by a fellow inmate on April 3, 2015 while he was incarcerated at Fishkill Correctional Facility. He also alleged that defendant, through its agents, failed to provide him with adequate and timely medical care prior to and following his surgery on July 10, 2015.
A trial of this claim was held by video conference on August 3, 2017. At the start of trial, defendant moved to restrict claimant's testimony to the allegations of medical malpractice which were alleged in his claim. Defendant established that the notice of intention to file a claim only contained allegations of medical malpractice. As a result the notice of intention could not be used to extend the time period required by Court of Claims Act § 10 (3) for filing and serving the claim in regard to the allegations of negligence surrounding the assault. The claim in this matter was served on defendant on October 5, 2015, well after 90 days from the accrual of the negligence claims surrounding the assault.
Court of Claims Act § 10 (3) requires that a claim must be filed and served upon the Office of the Attorney General within ninety days after the accrual of such claim unless the claimant shall within such time serve a notice of intention to file a claim upon the Office of the Attorney General.
The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Claimant's failure to strictly comply with the statutory requirements set forth in Court of Claims Act § 10 (3) deprives this Court of jurisdiction over the negligence claims surrounding the assault (Lepkowski v State of New York, 1 NY3d 201 ; Butler v State of New York, 126 AD3d 1247 [3d Dept 2015]; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]). Accordingly, the Court must dismiss those claims.
Turning to the remaining claim of medical malpractice, claimant alleges in his claim that on April 3, 2015 at approximately 10:00 p.m. he was attacked by a fellow inmate while at Fishkill Correctional Facility and as a result he suffered injuries. Claimant sets forth that defendant failed to provide, timely, reasonable and adequate medical care and as a result he suffered needless pain. Claimant testified that as a result of the attack he was brought to Putnam Hospital where he was diagnosed with a broken nose (septal fracture) and facial contusions and was discharged with instructions to see a specialist within 3-5 days. However, instead of seeing a specialist, he was sent to Downstate Correctional Facility from April 3, 2015 through April 8, 2015 where he was kept in a segregated housing unit and allegedly denied medical care. Claimant returned to Fishkill on April 8, 2015 and was kept in a segregated housing unit pending disciplinary charges. He testified that the windows were kept shut and that he had difficulty breathing and was in extreme discomfort. He testified that he was finally seen by a specialist on May 8, 2015, and that surgery was recommended. Surgery to correct the septal fracture and a deviated septum was performed on July 10, 2015. A mass on his right tonsil was noted and removed. Claimant testified that he was still having difficulty breathing and eating subsequent to the surgery. He also complained of headaches and mental health problems. On August 14, 2015, claimant had a follow-up appointment where he was informed that the mass on his tonsil was benign. There is also a note that reads, "needs plastic surgeon concerned about appearance of nose" (Cl Exh 2).
Claimant had a follow-up appointment on November 6, 2015 and a second surgery on November 30, 2015 for breathing and sinus problems. Claimant explained that the second surgery was the same as he had previously. He further contended at trial that the doctor recommended plastic surgery but that on January 8, 2016, he was informed that the request for that surgery was denied. The medical records indicate that the plastic surgery was denied as there was a lack of medical necessity for cosmetic surgery.
Claimant testified that the delay in seeing the specialist and the delay in his surgery caused the scar on his nose. He explained that he continues to feel pain and that he wakes up everyday with pain and nasal congestion on his left side. He takes a prescription nasal spray and Tylenol for the pain. Claimant testified that initially he was given Percocet but that he stopped taking it because he did not want to get addicted.
Documents relating to claimant's grievance filed April 23, 2015 were moved into evidence as claimant's exhibit 2. Claimant alleged in these documents that he was denied a consultation with a nose specialist. The correctional facility granted his request with clarification. After investigation, it was determined that a referral was made on April 9, 2015 and claimant was due to see the specialist on April 17, 2015. However, there was a delay in the appointment time which was addressed and the appointment was rescheduled. Claimant appealed, and stated that he is still in pain and he is not getting the correct medical care. After a hearing, the correctional facility determined that there was insufficient evidence of improper medical care or malfeasance by the staff. In support they cited the fact that claimant did see the specialist on May 8, 2015 and had numerous follow-up appointments and surgery. Claimant was also prescribed necessary medication and nasal spray. The correctional facility also noted that the Facility Health Service Directors have the sole responsibility for providing treatment and determining outside health referrals and follow-up appointments.
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]). "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 be assessed on the basis of the common everyday experience" (Matter of Barresi v State of New York, 232 AD2d 962, 963 [3d Dept 1996], quoting Smith v Pasquarella, 201 AD2d 782, 783, quoting Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978). Here, the acts and omissions alleged involve medical science and cannot be evaluated based upon everyday experience, therefore the allegations are indicative of a claim for medical malpractice. In order to establish the appearance of merit in a medical malpractice claim, claimant must set forth that defendant departed from the accepted standard of medical care, and that such a departure was a proximate cause of the injury (Mullally v State of New York, 289 AD2d 308 [2d Dept 2001]). General allegations of medical malpractice that are unsupported by competent evidence establishing the essential elements are insufficient (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]). "[E]xpert medical evidence clearly is required to demonstrate that the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standards" (Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]).
Claimant has failed to present sufficient evidence, namely expert medical evidence, to support the allegations of medical malpractice in this matter.
Therefore, based upon the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, his claim against defendant in this action. Accordingly the claim is hereby dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.
The Chief Clerk of the Court is hereby directed to enter said Judgment accordingly.
November 28, 2017
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims