Pro se inmate's medical malpractice claim was dismissed following trial as claimant failed to support his allegations with expert medical evidence.
|Claimant short name:||ROBINSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Franzblau Dratch, P.C.
By: Brian M. Dratch, Esq.
|Defendant's attorney:||Honorable Barbara D. Underwood, Attorney General
By: Belinda A. Wagner, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 7, 2018|
|See also (multicaptioned case)|
The claim asserts the claimant was injured as a result of the defendant's medical negligence, alleging a failure to timely and properly diagnose and treat claimant's spinal condition while he was in the custody of the Department of Corrections and Community Supervision (DOCCS). Trial of this matter was held on April 13, 2018.
Insofar as relevant here, claimant testified that he was received into DOCCS custody in 2003 following a guilty plea which resulted in an 18-year sentence. He testified that at the time he was received by DOCCS his health was excellent and he was subject to no physical limitations. "Around 2004, 2005"(1) claimant began to experience lower back pain which was treated by ibuprofen and rest. No specific cause for his pain was determined but his back improved over time. Sometime during the period 2007-2008, while he was at Attica Correctional Facility, his back "locked up" while the claimant was weightlifting. He was again prescribed ibuprofen and rest, and his back improved following treatment.
At Shawangunk Correctional Facility (Shawangunk) in January 2013, claimant's back "locked" while he was getting out of bed. Claimant testified that he was taken to the medical unit in a wheelchair and an entry in his Ambulatory Health Record dated January 17, 2013 (Exhibit B, p. 44) indicates complaints of right, lower back pain and numbness. The note sets forth that the claimant was issued ibuprofen and an analgesic balm, and the claimant testified at trial that he was prescribed and received physical therapy in response to his complaints of pain and numbness. Claimant again complained of right, lower back pain on January 22, 2013. The entry in claimant's Ambulatory Health Record for that date (Exhibit B, p. 44) indicates that he was provided ibuprofen and scheduled for an appointment with a medical doctor on February 19, 2013. Claimant testified that the physical therapy he received two times each week during January and February 2013 provided "temporary relief" from his lower back pain.
On February 5, 2013, the claimant experienced "sharp pain" and tightness in his back. The ambulatory health record entry for that date (Exhibit B, p. 43) notes that the claimant had no problems ambulating and referenced claimant's previously scheduled appointment with a medical doctor on February 19, 2013. Claimant acknowledged that he did not experience difficulty walking during February 2013 and that he continued to participate in his programming, although his instructor excused him from participating in physical labor.
Claimant testified that on February 19, 2013 he saw Dr. Lee, his primary care physician while he was at Shawangunk, regarding his complaints of lower back pain. He testified that he expressed to Dr. Lee his concerns that his lower back pain continued to recur despite having been provided physical therapy, and he requested a referral to an outside provider for continued physical therapy. Claimant related that he was provided Motrin and prescribed bed rest, and that his back pain eventually resolved, although he continued to experience minor pain in his lower back which resulted in difficulty standing.
Claimant confirmed that, as indicated in his Ambulatory Health Record (Exhibit B, p. 42), he received an X-ray of his spine on February 27, 2013. During the month of March 2013 claimant testified he experienced "episodic pain" in his back although the entries in his ambulatory health record for the month do not include complaints of back pain.
Claimant was again seen by Dr. Lee regarding complaints of back pain on April 1, 2013. Claimant was instructed to continue taking medications previously provided or prescribed, and physical therapy was reauthorized. An entry in claimant's Ambulatory Health Record for April 3, 2013 (Exhibit B, p. 40) indicates that the claimant attended emergency sick call complaining "I can't walk", "my back is in spasm". The same note states that the claimant was prescribed 800 mg Motrin and an analgesic balm. Claimant explained at trial that he was experiencing "excruciating pain" in his lower back and was taken to emergency sick call in a wheelchair. He again attended emergency sick call on April 11, 2013 complaining of spasms in his back and difficulty standing and walking (Exhibit B, p. 40). Claimant was admitted to the infirmary where he remained until April 15, 2013 when he was taken to the Albany Medical Center Emergency Department for evaluation of a sudden onset of numbness and loss of tactile sensation in his legs (Exhibit B, p. 39). Claimant was evaluated and given medications which ameliorated his pain. He returned to Shawangunk the next day and remained in the facility infirmary until his discharge to general population on April 25, 2013. At that time he was provided crutches and was prohibited from participating in work, programs and outside recreation activities. Claimant was taken to Coxsackie Correctional Facility on May 1, 2013 where an EMG (Electromyography) was performed. A note in claimant's Ambulatory Health Record dated May 6, 2013 (Exhibit B, p. 38) notes an "obvious abnormality of RT foot" and that an appointment with Dr. Lee was scheduled for May 8, 2013. Claimant saw Dr. Lee on May 8, 2013 and the ambulatory record for that date (Exhibit B, p. 37) indicates the claimant was suffering from right foot drop. He was again seen in the infirmary on May 16, 2013 when he alleges he complained of back pain and numbness in both his right and left legs. The Ambulatory Health Record note for that date (Exhibit B, p. 36) does not contain any reference to such complaints by the claimant.
Mr. Robinson testified that on May 19, 2013 he experienced a sudden onset of weakness and numbness in his legs which left him unable to walk. The Ambulatory Health Record indicates that the claimant was taken for emergency sick call following a call from the block officer, and confirms claimant's trial testimony that he was experiencing a sudden onset of weakness and numbness combined with an inability to walk (Exhibit B, p. 36). He was taken to Ellenville Regional Hospital on May 24, 2013 where an MRI exam was conducted. Claimant's Ambulatory Health Record includes a description of the preliminary results of the MRI, which identified a severe, large herniated disk with stenosis which might require emergency surgery (Exhibit B, p. 35). Claimant was returned to Shawangunk and immediately transported to the Albany Medical Center Emergency Department for "evaluation of severe herniated disc [with] stenosis which may require emergency surgery" (Exhibit B, p. 34). The Transfer Discharge Summary prepared by claimant's attending physician states that Mr. Robinson underwent bilaterial L4-L5 laminoforaminotomies and L4-L5 discectomies at Albany Medical Center on May 25, 2013 (see Exhibit 1). Claimant was returned to Shawangunk on May 29, 2013 and admitted to the facility infirmary. Claimant testified that his back improved during his stay in the infirmary, that his pain was substantially reduced and, although he had continued numbness in his right leg, he experienced no numbness in his left. Claimant was discharged from the infirmary on June 4, 2013 and reassigned to the general population. He was prescribed physical therapy, a wheelchair, an AFO brace for his drop foot, a knee brace and medical boots. Since June 2013 claimant states that he has experienced "some good days, some bad" with regard to his back pain, but he testified that the "surgery definitely worked". Currently, the claimant limps and walks with the assistance of a cane.
On cross-examination, the claimant clarified that he was received into DOCCS custody in 2007 following a period of confinement at Rikers Island. He acknowledged that prior to his incarceration he had injured his back while working at a Kmart, and that as a result of his injuries he was required to wear a back brace and prohibited from heavy lifting. He further acknowledged that he had been treated for complaints of back pain related to weightlifting in December 2009 (Exhibit B, p. 53) and June 2010 (Exhibit B, p. 51). Claimant agreed that he received physical therapy during the period February through May 2013.
Mr. Robinson testified that he was transported to Albany Medical Center on April 15, 2013 in response to the sudden onset of numbness in his legs. He was evaluated at Albany Medical Center and prescribed medications which reduced his lower back pain. He was returned to Shawangunk and discharged from the facility infirmary on April 25, 2013. On May 1, 2013 the claimant was transported to Coxsackie Correctional Facility for an EMG. Claimant appeared for emergency sick call on May 19, 2013 and was sent to the Albany Medical Center Emergency Department where he was evaluated and prescribed pain medications. He returned to Shawangunk on May 20, 2013 and an MRI of the claimant's lower spine was performed at Ellenville Regional Hospital on May 24, 2013. Finally, claimant agreed that he was transported to Albany Medical Center for evaluation of suspected herniated disks on May 24, 2013 and that emergency surgery was performed the following day, May 25, 2013. Following his surgery he was returned to Shawangunk where he was admitted to the infirmary until June 4, 2013. When he was discharged he was assigned a walker and was provided a wheelchair the following day.
The claimant rested at the conclusion of Mr. Robinson's testimony and the defendant moved to dismiss for failure to establish a prima facie case. Defendant's motion is granted.
The State has a fundamental duty to provide adequate medical care to inmates in its prisons without undue delay (Andrews v County of Cayuga, 96 AD3d 1477, 1477 [4th Dept 2012]; 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 a claimant's allegations relate entirely to the professional skill and judgment of his treating professionals, however, a medical malpractice cause of action is alleged (Maki v Bassett Healthcare, 85 AD3d 1366 [3d Dept 2011], appeal dismissed 17 NY3d 855 , lv dismissed and denied 18 NY3d 870 ).
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 , cert. denied 419 US 1013 ); Abascal v State of New York, 93 AD3d 1216 [4th Dept 2012], lv denied 19 NY3d 805 ; Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]). Where only nondiscretionary medical protocols are alleged to have been breached (Kagan, 221 AD2d at 10-11) or the matter relates to information within the common knowledge of laypersons (Maki, 85 AD3d at 1367), a cause of action for medical negligence is stated. Under either theory, liability does not attach absent competent medical evidence that the defendant's negligence was a proximate cause of the claimant's ensuing medical problems (Tolliver v State of New York, 133 AD3d 990 [3d Dept 2015], lv denied 26 NY3d 919 ; Knight v State of New York, 127 AD3d 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 ; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Trottie, 39 AD3d 1094; Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 ).
Here, expert medical testimony was clearly required to prove that the defendant's alleged delay in referring claimant for a neurological consultation constituted a deviation from accepted standards of medical practice, and that such deviation was a proximate cause of his ensuing medical problems. Claimant's failure to present such expert evidence requires dismissal of the claim as a matter of law. Consequently, defendant's motion for a directed verdict is granted, and the claim is dismissed.
Let judgment be entered accordingly.
August 7, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. All quotes are taken from the audio recording of the trial unless otherwise noted.