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New York State Court of Claims

New York State Court of Claims
MALAVE' v. THE STATE OF NEW YORK (1), # 2018-038-109, Claim No. 121868


Claim for medical negligence or medical malpractice dismissed after trial for lack of a prima facie case. Whether defendant correctly diagnosed and treated claimant's eye injury was not a matter within the knowledge of a lay person, and thus, claimant's failure to support his claim with expert opinion evidence required granting defendant's motion to dismiss.

Case information

UID: 2018-038-109
Claimant short name: MALAVE'
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK(1)
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 121868
Motion number(s):
Cross-motion number(s):
Claimant's attorney: ANTHONY MALAVE', Pro se
Defendant's attorney: BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:
Signature date: July 27, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he alleges that a physician at Green Haven Correctional Facility (CF) was negligent and committed malpractice in his diagnosis and treatment of an injury to claimant's eye in August 2010. The trial of this claim was conducted by videoconference on June 7, 2018, with the parties appearing at Green Haven CF in Stormville, New York and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony; defendant called no witnesses. Portions of one exhibit offered by claimant was received in evidence.(2) No exhibits were offered into evidence by defendant. After listening to claimant's testimony, and observing his demeanor as he did so, and upon consideration of that evidence, the documentary evidence received at trial, the arguments of the parties at trial, and the applicable law, the Court concludes that claimant has failed to make a prima facie showing that defendant is liable to him.


Claimant testified that he requested emergency sick call (ESC) at Green Haven CF on August 18, 2010 after having scratched his left eye on a pillowcase during the night while he slept. Claimant testified that he suffers from a condition that causes his eyes to protrude and that his eyelids do not close completely when he sleeps and that he had previously scratched his eyes on his pillowcase and received medical attention from Green Haven CF medical staff for those injuries. Claimant's medical records reflect that he had "persistent corneal keratopathy" and had been treated for a corneal abrasion on June 18, 2010 and was subsequently seen by an ophthalmologist on June 21 and June 23, 2010 (see Claimant's Exhibit 1, pp.1, 3). Claimant testified that he was seen by Dr. Bhopale at the Green Haven CF clinic on August 18, 2010, who examined his eye and told him that there was nothing wrong and sent him back to his cell with eye drops. An entry in claimant's Ambulatory Health Record (AHR) dated August 18, 2010 notes that claimant stated that he "scratched his left eye while sleeping against pillowcase" and that "he has trouble seeing at a distance but he can read # of [indecipherable] without any trouble," that "no corneal abrasion [was] seen" and that he had an ophthalmology appointment scheduled for September 22, 2010 (see id., p.5 [8/18/10 AHR entry]).

Claimant testified that he requested ESC the morning of August 19, 2010 after he sustained another injury to his left eye. Claimant testified that when he went to the Green Haven CF clinic on August 19, 2010 he was seen by a nurse who told him that he would again be seen by Dr. Bhopale, who was the only doctor present at the clinic at the time. Claimant testified that he informed the nurse that he did not want to be seen by Dr. Bhopale because he did not properly treat his eye injury the day before, but the nurse told him that he would have to see Dr. Bhopale. Claimant testified that he was then seen by Dr. Bhopale who told him again that there was nothing wrong with his eye and directed him to go back to his cell. Claimant testified that he grew angry with Dr. Bhopale because he knew that there was something wrong with his eye because it was swollen and a "gooey substance was leaking out of [his] eye."(3) Claimant testified that he argued with Dr. Bhopale for approximately five minutes and that Dr. Bhopale eventually conceded and agreed to refer him to an outside hospital for treatment despite thinking that nothing was wrong. Entries in claimant's AHR dated August 19, 2010 reflect that claimant complained of left eye pain and white drainage, and that an ophthalmology consultation had been "done" the day before (id., p.5 [8/19/10 9:15 a.m. AHR entry]). In Dr. Bhopale's August 19, 2010 request for consultation he noted "[n]o abrasion seen" (id., p.6 [Reason for Consultation section]).

Claimant testified that he was seen by an ophthalmologist at Putnam Hospital Center (PHC) on August 19, 2010. Claimant's PHC records reflect that he had "complaint[s] of chronic eye [ulcers] and left eye pain," and pain of 9 on a scale of 1 to 10, and that claimant had eye swelling and discharge (see id., p.7). Claimant was seen by Dr. Farquar, an ophthalmologist, who assessed claimant with a corneal abrasion to his left eye and ordered that claimant's eye be patched and that claimant be seen by an ophthalmologist within 24 hours (id., p.6 [Consultant Report section]; p.8). Claimant testified that he returned to Green Haven CF on August 19, 2010. Claimant's medical records reflect that claimant was referred by Dr. Bentivegna, a Green Haven CF doctor, on August 19, 2010 to Westchester Medical Center (WMC), for further evaluation for corneal abrasions, who noted that claimant was diagnosed by PHC with multiple corneal abrasions and ulcerations (see id., p.9). Claimant's medical records further reflect that he was seen at WMC on August 20, 2010 where he was assessed with a corneal ulcer.


The claim asserts that Dr. Bhopale committed "negligent practice and malpractice" in his treatment of claimant on August 18 and August 19, 2010 (Claim number 121868, 2). Defendant moved to dismiss the claim at the conclusion of claimant's proof for lack of a prima facie case, arguing that the claim sounds in medical malpractice and that claimant failed to adduce expert proof in support of his claim. Claimant opposed the motion, arguing that expert proof was unnecessary because the doctrine of res ipsa loquitur applies and because Dr. Bhopale's negligence and malpractice and its causal relationship to his injuries was readily apparent. The Court reserved decision on defendant's motion which it will now grant, for the reasons that follow.

"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990]; see also Kagan v State of New York, 221 AD2d 7, 11 [2d Dept 1996]). The State's "duty to provide medical care and treatment to its prisoners . . . has been defined in terms of both negligence. . . and medical malpractice" (Kagan, 221 AD2d at 16). A claim sounds in medical malpractice rather than negligence, when "the negligence alleged . . . relates . . . to the professional skill and judgment rendered by doctors [in medically treating a patient], rather than information within the common knowledge of a layperson" (Maki v Bassett Healthcare, 85 AD3d 1366, 1367 [3d Dept 2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]). Claimants alleging medical malpractice are "required to prove, through a medical expert, that [medical professionals] breached the standard for good and acceptable care in the locality where the treatment occurred and that [such] breach was the proximate cause of [their] injury" (Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]). Only a "narrow category of factually simple medical malpractice cases requires no expert to enable the [factfinder] reasonably to conclude that the accident would not happen without negligence. Not surprisingly, the oft-cited example is where a surgeon leaves a sponge or foreign object inside the [claimant's] body" (Kambat v St. Francis Hosp., 89 NY2d 489, 496 [1997]; see also Rivers v State of New York, 142 Misc 2d 563, 567 [Ct Cl 1989], revd on other grounds, 159 AD2d 788 [3d Dept 1990], lv denied 76 NY2d 701 [1990] [expert affidavit unnecessary where medical malpractice related to operation on wrong body part]). However, and regardless of "[w]hether the claim is grounded in negligence or medical malpractice, '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case' " (Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]).

Claimant essentially argues that expert medical proof is unnecessary because a lay person would have recognized that he had an eye injury. However, and notwithstanding his readily observable symptoms, the claim is based upon the alleged failure of Dr. Bhopale to exercise his medical skill and judgment and thereby failing to properly diagnose and treat claimant's scratched cornea. Whether Dr. Bhopale committed medical malpractice or was otherwise negligent with regard to the diagnosis of claimant's eye condition is not a matter within the knowledge of a lay person. Indeed, claimant argued that his history of eye problems mandated a more thorough examination and additional testing of his eye, which is not an issue that a lay person could resolve without the assistance of a medical expert. Thus, testimony by an expert to edify the factfinder on medical issues relevant to Dr. Bhopale's diagnosis and treatment of claimant's eye was required.

Claimant's reliance on the doctrine of res ipsa loquitur is unavailing as that doctrine may be invoked only in medical negligence claims involving a foreign object left in the body or an unexplained injury to an area remote from the treatment site, and where the injury was caused by an agency or instrumentality within the exclusive control of defendants (see McCarthy v Northern Westchester Hosp., 139 AD3d 825, 827-828 [2d Dept 2016]), none of which are present here. Claimant's further contention that expert proof is not required to prove that Dr. Bhopale's negligence or malpractice was the proximate cause of his suffering after the alleged missed diagnosis is unavailing inasmuch as expert proof is required to prove in the first instance that Dr. Bhopale breached the relevant standard of medical care. Accordingly, inasmuch as claimant has failed to adduce expert proof in support of his claim, the claim must be dismissed.

Furthermore, the evidence does not preponderate in favor of a finding that defendant should be held liable for failing to treat claimant or that it breached another duty to treat. The evidence fairly establishes that claimant sought medical treatment for his complaints on August 18 and August 19, 2010 and was promptly assessed and treated by Green Haven CF medical staff and outside providers, including defendant's compliance with Dr. Farquar's August 19, 2010 order that claimant be seen by an ophthalmologist within 24 hours of treatment. Accordingly, because claimant has not established by a preponderance of the credible evidence that defendant's agents breached any standard of medical care or any other duty owed to claimant, defendant is not liable to claimant.


Defendant's motion to dismiss the claim at the conclusion of claimant's case is GRANTED, and thus, claim number 121868 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.

The Chief Clerk is directed to enter judgment accordingly.

July 27, 2018

Saratoga Springs, New York


Judge of the Court of Claims

1. The caption of the claim has been amended sua sponte to reflect the State of New York as the only proper defendant on this claim.

2. Claimant's Exhibit 1 consisted of the claim and medical records that were attached to the claim, portions of which were highlighted. The Court received into evidence only the medical records, with the proviso that the highlighting would be disregarded. Thus, the Court has considered the substance of the highlighted portions but attributes no weight to the fact that the portions were highlighted.

3. Unless otherwise indicated, all quotations are to the audio recording of the trial of this claim.