Defendant's motion to dismiss medical negligence claim at the conclusion of claimant's proof reserved upon at trial, granted thereafter. Proof offered by claimant on the issues of doctor's failure to exercise medical skill and judgment in performing the correct surgical procedure and in directing proper instructions following the surgery, that a nurse practitioner was negligent in discontinuing claimant's pain medication and should have removed his sutures sooner, that claimant should have been provided a wheelchair upon discharge from the infirmary, that defendant's agents were negligent in failing to transmit claimant's complete surgical history to the physical therapists and that physical therapists were negligent because they relied upon an incomplete surgical history are all issues that implicate matters not within the knowledge of a lay person thus requiring expert testimony, which claimant did not offer.
|Claimant short name:||EASTWOOD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||RAY EASTWOOD, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 20, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he alleges that medical professionals at Green Haven Correctional Facility (CF) were negligent and committed medical malpractice with regard to treatment of a right knee condition beginning in June 2012. The trial of this claim was conducted by videoconference on August 23, 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 and fifteen exhibits offered by him were received into evidence. Defendant did not put on a case. 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 in the absence of testimony from a medical expert, claimant has failed to make a prima facie showing that defendant is liable to him.
Claimant testified that an MRI of his knee on July 6, 2011, revealed a "Grade I sprain of the medial collateral ligament complex," "patellar articular cartilage thinning with focal fibrillation and questionable focal denuding at the patella apex," "[s]mall joint effusion," and "[n]o meniscal cartilage tear" (Claimant's Exhibit 1). Claimant testified that Dr. Stephen Schwartz, an orthopedic specialist,(1) told claimant after the MRI that he had arthritis that was causing pain in his knee and that he could undergo "orthoscopic [sic] abrasion arthroplasty"(2) that involved scraping his kneecap, which might improve, but would not cure his condition (see also Claimant's Exhibit 2). Claimant testified that Dr. Schwartz operated on his knee on June 5, 2012 at Mount Vernon Hospital on an outpatient basis and claimant returned to Green Haven CF later that day and was admitted to the infirmary.
The post-operative note for claimant's June 5, 2012 surgery reflects that he was diagnosed pre-operatively and post-operatively with a "tear of meniscus, chondromalagia, plica" and that the following procedures were performed: "arthroscopy, meniscectomy, abrasion chondroplasty, with microfracture right knee" (Claimant's Exhibit 3). A hospital discharge/transfer summary reflects that the following procedures were performed: "chondral abrasion arthroplasty patella" and a "lateral release," but a meniscectomy was not listed (Claimant's Exhibit 4). The Green Haven CF infirmary admission note reflects that claimant had arthroscopy on his right knee and that the following procedures were performed: "lateral retinaculum release[,] chondral abrasion[,] arthroplasty patella and trochlea and meniscectomy" (Claimant's Exhibit 5). Claimant testified that he did not know why Dr. Schwartz performed a meniscectomy when his July 2011 MRI showed no meniscal cartilage tear.
Claimant testified that after he returned to Green Haven CF, he was told by a nurse that in addition to performing the orthoscopic abrasion arthroscopy, Dr. Schwartz had done a "lateral retinaculum release" procedure to his knee, which would require a greater healing time. Claimant testified that he was released from the infirmary on June 7, 2012 with crutches, which forced claimant to ambulate long distances in and around Green Haven CF. Claimant testified that he was told by Nurse Practitioner (NP) Dashawitz, his primary care provider at Green Haven CF, that Dr. Schwartz did not order that he be released with a wheelchair. Claimant's hospital discharge/transfer summary states that claimant was to be provided with a splint for 1 week and includes no indication that claimant was to be provided with crutches or a wheelchair (see Claimant's Exhibit 4).
Claimant testified that NP Dashawitz removed the sutures from the incision site on June 18, 2012 and the sutures "were all scabbed over" because they had been in for so long. Claimant testified that the surgical wound re-opened and started bleeding when NP Dashawitz removed the sutures, requiring a bandage, and that if the sutures had been removed at the appropriate time there would not have been any issues. Claimant testified that he had physical therapy (PT) after his surgery, which was done incorrectly because the physical therapist was never told that claimant had undergone a meniscectomy. The PT provider noted in claimant's PT progress note that claimant's arthroscopy on June 5, 2012 consisted of "lateral retinacular release [and] abrasion arthroplasty" (Claimant's Exhibit 6). Claimant testified that he received a knee brace after his surgery, which he wore for years, but that the Department of Corrections and Community Supervision (DOCCS) denied him the brace in 2015, and that it is now painful to ambulate without the brace.
Claimant testified that he received pain medication after his surgery and that he was informed by a nurse at sick call on June 15, 2012 that his pain medication was discontinued because his permit had expired. Claimant testified that he submitted a sick call slip on June 17, 2012 to reinstate his pain medication because he was in "a lot of pain." Claimant testified that on June 18, 2012, NP Acrish reinstated his pain medication for seven days until he saw NP Dashawitz.(3) In a DOCCS Consultant Report, Dr. Schwartz recommended "Modify pain meds" (Claimant's Exhibit 7).(4) Claimant testified that his pain medication was repeatedly discontinued and then reinstated for various periods of time between June 29 and October 11, 2012, but that he had no problems receiving his pain medication after NP Dashawitz ceased being his medical provider in October 2012.
Claimant's medical records reflect that when he was admitted to the infirmary on June 5, 2012, he was under an order to receive Percocet every four hours, as needed ("PRN") (see Claimant's Exhibit 5). On June 6, 2012, medical staff discontinued Percocet every 4 hours and started claimant on Percocet every eight hours, as needed, for five days, which was later modified to every six hours for "24 hrs only" (id.). According to claimant's medication records, claimant had an order of Tylenol #3, three times a day, as needed from June 7, 2012 to June 26, 2012, an order of Ultram, once a day from July 11 through July 24, 2012, an order of Ultram twice a day from July 27 through August 27, 2012, which was continued through September 12, 2012, and an order of Ultram, twice a day, from October 11, 2012 through May 27, 2013 (see Claimant's Exhibit 8, at 2-8).
The claim asserts that Dr. Schwartz and Green Haven CF medical personnel committed medical malpractice in their treatment of claimant's right knee condition commencing in June 2012. Defendant moved to dismiss the claim at the conclusion of claimant's proof for lack of a prima facie case, arguing that claimant failed to adduce expert proof in support of his claim. Claimant opposed the motion, arguing that expert proof was unnecessary because the documents demonstrate defendant's liability. The Court reserved decision on defendant's motion, which will now be granted, 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 , lv dismissed and denied 18 NY3d 870 ). 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 ; 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  [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 , quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 ).
Claimant argues that expert medical proof is not necessary because the records establish that Dr. Schwartz and Green Haven CF medical personnel, including NP Dashawitz, committed medical malpractice or were otherwise negligent. Assuming without deciding that defendant could be held vicariously liable for Dr. Schwartz's alleged malpractice or negligence (see Garofolo v State of New York, 135 AD3d 1108, 1109 [3d Dept 2016]), the claim and the proof adduced at trial allege that Dr. Schwartz failed to exercise his medical skill and judgment in performing the correct surgical procedure and in directing proper instructions following the surgery, issues that implicate matters not within the knowledge of a lay person. Similarly, the allegations that NP Dashawitz was negligent in discontinuing claimant's pain medication, that claimant should have been provided a wheelchair upon discharge from the infirmary, that NP Dashawitz should have removed claimant's sutures sooner, that defendant's agents were negligent in failing to transmit claimant's complete surgical history to the physical therapists and that claimant's physical therapists were negligent because they relied upon an incomplete surgical history, relate to the quality of medical care rendered to claimant or to the judgment of medical professionals, none of which are matters that are within the ordinary experience of a lay person. Thus, testimony by an expert to edify the factfinder on medical issues relevant to claimant's medical treatment and care was required, and as claimant has failed to adduce expert proof in support of his claim, the claim must be dismissed.
Defendant's motion to dismiss the claim at the conclusion of claimant's case is GRANTED, and thus, claim number 122300 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.
The Chief Clerk is directed to enter judgment accordingly.
September 20, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claimant testified that although he has since learned that Dr. Schwartz is a DOCCS consultant, it was his impression and understanding at the time that he was under his care that he was a DOCCS employee.
2. Unless otherwise indicated, all quotations are to the audio recording of the trial of this claim.
3. Claimant testified that Acrish was a physician's assistant (PA), but documents in evidence demonstrate that Acrish held the title of NP (see Claimant's Exhibit 5). Further, claimant's Ambulatory Health Record states that claimant saw NP Dashawitz on June 18, 2012, who removed his stitches and placed claimant on Tylenol #3 for seven days (see Claimant's Exhibit 9).
4. The Consultant Report states that "Consultant treatment plan is a recommendation and final determination is made by the inmate's [DOCCS] physician" (Claimant's Exhibit 7).