New York State Court of Claims

New York State Court of Claims
FABELO v. THE STATE OF NEW YORK, # 2019-053-011, Claim No. 126649


In a trial by a pro se claimant asserting claims of negligence and inadequate medical care during his incarceration, the State moved to dismiss the claim for failing to timely file and serve his claim and for failing to call an expert witness.  The Court determined that the claim asserted a cause of action for medical malpractice and that the claim was timely. However, claimant's failure to present expert testimony at trial results in the dismissal of his claim.

Case information

UID: 2019-053-011
Claimant short name: FABELO
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126649
Motion number(s):
Cross-motion number(s):
Claimant's attorney: ADALBERTO FABELO, Pro Se
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Bernard F. Sheehan, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 14, 2019
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant Adalberto Fabelo, an inmate proceeding pro se, seeks damages by claim no. 126649 for personal injuries he sustained due to the alleged negligent and inadequate medical care he received while incarcerated by the New York State Department of Corrections and Community Supervision (DOCCS) at Groveland Correctional Facility (Groveland). Defendant State of New York answered the claim and inserted several affirmative defenses, including the sixth affirmative defense for lack of jurisdiction due to claimant's failure to timely file and serve his claim. A trial of this matter was conducted by video conference on March 15, 2019, with the parties appearing at Groveland and the Court sitting in Buffalo, New York.

Claimant testified according to the allegations contained in his claim. He called no witnesses. A certified copy of claimant's medical records was marked and accepted into evidence as Exhibit A.

Once claimant rested, defendant moved to dismiss the claim, arguing that claimant failed to timely file and serve his claim and failed to call an expert witness or offer an expert opinion. The trial was adjourned to allow the Court to rule on defendant's motion.

Pursuant to Court of Claims Act 10 (3), a claim for personal injuries must be filed and served within ninety (90) days of accrual of the claim. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to timely file and serve a copy of the claim within the requisite ninety (90) day period divests the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]).

A claim for medical negligence or for medical malpractice accrues when the alleged negligent act or omission occurs (Santana v St. Vincent Catholic Med. Ctr. of N.Y., 65 AD3d 1119 [2d Dept 2009]). The latest date alleged in the claim is August 24, 2014. If this date is used as the accrual date, then the claim is untimely and must be dismissed as it was not filed until over one year later on August 26, 2015, and thereby more than ninety (90) days after accrual of the claim. Claimant, however, argues that his claim was timely under the continuous treatment doctrine. The continuous treatment doctrine provides that the prescribed time limitations may be tolled until the end of treatment "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint" (Johanson v Sullivan, 68 AD3d 1303, 1304 [3d Dept 2009], quoting Iazzetta v Vicenzi, 200 AD2d 209, 211 [3d Dept 1994], dismissed 85 NY2d 857 [1995]). The continuous treatment doctrine "rests upon the belief that the best interests of a patient warrant continued treatment with an existing provider, rather than stopping treatment," as the existing provider " 'not only is in a position to identify and correct his or her malpractice, but is best placed to do so' " (Rudolph v Jerry Lynn, D.D.S., P.C., 16 AD3d 261, 262 [1st Dept 2005], quoting McDermott v Torre, 56 NY2d 399, 408 [1982]). It has been held that the initiation of the legal process severs the continuing relationship of trust in any patient-physician relationship (Garofolo v State of New York, 80 AD3d 858 [3d Dept 2011]). In a prison setting, the tolling provision of the continuous treatment doctrine is interrupted by the filing of a notice of claim or, as in this case, by the filing of the claim (Id. at 859; O'Connor v State of New York, 15 AD3d 827 [3d Dept 2005]).

In determining whether to apply the tolling provision of the continuous treatment doctrine, it must first be determined whether the claim sounds in medical malpractice or negligence. There is a subtle distinction between these two causes of action. When the conduct complained of relates to medical treatment, the cause of action is for medical malpractice (Bleiler v Bodnar, 65 NY2d 65 [1985]). However, "not every act of negligence toward a patient would be medical malpractice" (Id. at 73). Thus, where the claim is not negligence in providing medical treatment, but a lack of treatment or the failure to follow a medical order previously made, then the claim sounds in ordinary negligence and the continuous treatment doctrine is inapplicable (Gasparro v State of New York, 163 AD3d 1227 [3d Dept 2018]; Martuscello v Jensen, 134 AD3d 4 [3d Dept 2015]). "The issue devolves to whether medical judgment is required or not" (Id. at 11).

Claimant alleges in his claim that Groveland failed to properly treat his continual complaints of pain in his lower solar plexus and failed to diagnose gallstones and an infected gallbladder. According to claimant, these alleged failures led to the need for an emergency operation at Wyoming County Community Hospital (WCCH) on April 26, 2014. Claimant testified at trial that on May 5, 2014, Groveland issued a medical permit indicating that claimant was not eligible to return to work in the mess hall for one month in alleged contradiction of the recommendation of his surgeon that he required sixty days to recuperate from the gallbladder surgery. On June 20, 2014, after allegedly being forced to return to work prematurely, claimant found a small protrusion in the area of his surgery which turned out to be a hernia. On November 12, 2014, claimant underwent surgery at Erie County Medical Center (ECMC) for the repair of the hernia. According to claimant, ECMC used mesh to cover the abdominal wall which failed to repair the hernia, leaving the hernia worse than before surgery and requiring a second hernia repair surgery.(1) Neither WCCH nor ECMC is a State facility.

Where, as here, the questions presented relate to the care given claimant at Groveland and whether the treatment given and/or any alleged delay in providing treatment caused or contributed to claimant's injuries, they involve medical judgment and, therefore, sound in medical malpractice (Matthews v Barrau, 150 AD3d 836 [2d Dept 2017]). The Court finds that the continuous treatment doctrine applies to claimant's medical malpractice allegations. Accordingly, the ninety (90) day limitation period set forth in Court of Claims Act 10 (3) was tolled and the medical malpractice allegations in the claim are timely. In addition, any claims against the State based on the care given claimant at Groveland that accrued within ninety (90) days of August 26, 2015, when the claim was filed, are also timely.

However, insofar as claimant testified that Groveland issued a permit forcing him to return to work prematurely in contravention of his surgeon's instructions, such an allegation sounds in medical negligence, assuming that this decision was not based on a medical judgment made at Groveland. In this event, claimant had ninety (90) days from the issuance of the permit to serve and file a notice of intention to file a claim or a claim. According to claimant, this permit was issued on May 5, 2014, but the claim was not filed until August 26, 2015, which again is more than ninety (90) days after the accrual of the claim. As a result, this allegation is untimely and must be dismissed.

In that I have determined that the claim is timely with respect to the medical malpractice allegations, the Court must next address defendant's motion to dismiss based on claimant's lack of expert evidence or testimony. It has long been recognized that the State has a duty to provide reasonable and adequate medical care to inmates (Rivers v State of New York, 159 AD2d 788 [3d Dept 1990], lv denied 76 NY2d 701 [1990]). In order to establish that the State failed in its duty and committed medical malpractice, expert medical opinion is required to establish that the State departed from good and accepted standards of care and that this departure was a substantial factor or a proximate cause of the alleged injuries (Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Kaminsky v State of New York, 265 AD2d 306 [2d Dept 1999]). Claimant's failure to present expert testimony that the State's treatment or delay in treatment deviated from appropriate standards of care and that such deviation contributed to his injuries is fatal to his cause of action for medical malpractice as a matter of law.

Finally, the State cannot be held liable for any alleged medical malpractice committed by a doctor or surgeon from an outside, non-State facility or hospital like WCCH or ECMC, who was not demonstrated to be acting on behalf of the State (Rivers supra at 789).

Based on the foregoing, defendant's motion to dismiss made at the conclusion of claimant's proof at trial is granted and claim no. 126649 is dismissed.

Let judgment be entered accordingly.

May 14, 2019

Buffalo, New York


Judge of the Court of Claims

1. According to claimant's medical records (see Trial Exhibit A), this second hernia repair surgery was performed at ECMC in September of 2015, after the claim had been filed. Accordingly, it is not a part of the present claim.