New York State Court of Claims

New York State Court of Claims
GIRARD v. STATE OF NEW YORK, # 2020-015-018, Claim No. 127282


Following trial of a pro se inmate claim, claim alleging medical malpractice and medical negligence was dismissed. No expert medical proof was submitted in support of the claim.

Case information

UID: 2020-015-018
Claimant short name: GIRARD
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127282
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Chauncey Girard, Pro Se
Defendant's attorney: Honorable Letitia James, Attorney General
By: Christina Calabrese, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 16, 2020
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, a pro se inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), asserts causes of action for medical malpractice and medical negligence arising from DOCCS' alleged delay in providing medical treatment for injuries to his shoulder and stomach. The trial of this matter was held by remote video technology on November 22, 2019.

Claimant testified that after he was assaulted in Auburn Correctional Facility (Auburn), he was transferred to Upstate Correctional Facility and then to Great Meadow Correctional Facility (Great Meadow). He testified that the shoulder injury he suffered during the Auburn assault caused him pain during showers and he had trouble getting out of bed. He was also spitting-up blood. Claimant testified that he requested medical care numerous times by utilizing the sick-call procedure both in the Special Housing Unit and following his release to general population at Great Meadow. In response, nurses would simply walk past his cell. Claimant testified that he filed numerous grievances regarding DOCCS' failure to provide medical treatment, all to no avail. He testified that an MRI study, which indicated a need for surgery, was finally performed while he was an inmate at Great Meadow, although it was not until he was transferred to Green Haven Correctional Facility that surgery to repair his shoulder was finally performed.

On cross-examination claimant could not state how many times he was seen in the medical department of Great Meadow and he testified that physical therapy was never provided.

The medical records provided by the claimant indicate that he was seen by a physician at Auburn on December 23, 2014 following an altercation with another inmate. An x-ray of the claimant's left shoulder was reportedly "normal" and it was the physician's assessment at that time that he had sustained a "muscle-skeletal injury left upper arm" (Exhibit 1). The only other medical records proffered by the claimant are an orthopedic referral from DOCCS dated August 17, 2017, together with the orthopedist's response dated September 11, 2017 (Exhibit 4); a page from DOCCS' 2014 health provider's progress notes regarding claimant's request for a CT scan of his stomach (Exhibit 13), and a patient information form regarding shoulder arthroscopy from Montefiore Mount Vernon hospital with three photocopied photographs of the procedure under the heading of the claimant's name and a procedure date of February 23, 2017 (Exhibit 9). DOCCS' orthopedic referral dated August 17, 2017 indicates claimant had shoulder surgery in February 2017 with continuing complaints of pain and limitation of motion (Exhibit 4). Dr. Holder's report dated September 11, 2017 notes a restriction in motion of the claimant's left shoulder with the comments "No instability" and "Symptoms improved from pre-op status, self-exercise instructions given" (id).

The trial record also reflects the multiple grievances claimant filed regarding DOCCS' alleged failure to provide necessary medical treatment. It appears that claimant filed his first grievance on June 1, 2015. The Superintendent denied the grievance on June 29, 2015, noting that the grievance was previously addressed, all x-rays were negative, and "[s]urgery is not medically necessary at this time" (Exhibit 2). With respect to claimant's complaints of stomach issues, the response indicated that "[t]he grievant was seen by the PA on 6/5 in regards to his stomach and the results proved benign" (id.). The claimant was advised to follow-up with sick call as he deemed necessary. The Superintendent of Great Meadow additionally responded to a June 2, 2015 grievance on June 4, 2015 indicating that claimant had been seen in sick call on April 24, 2015, May 5, 2015 and May 29, 2015 (Exhibit 8). According to the Superintendent's grievance response, the results of the May 5, 2015 x-rays were normal and a physician's examination of May 29, 2015 indicated that "an MRI and/or a CT are not medically necessary" (id.). The claimant was again advised to address his medical concerns through sick-call procedures. Claimant filed subsequent grievances regarding his request for shoulder surgery and for medical treatment to address his stomach issues on February 22, 2016 (Exhibits 5 and 6 [shoulder treatment needed]), March 7, 2016 (Exhibits 7 and 10 [shoulder surgery needed]), June 3, 2016 (Exhibit 11 [need for treatment]) and July 8, 2016 (Exhibit 12 [spitting up blood]). The claimant's July 8, 2016 grievance was denied by both the Superintendent and the Central Office Review Committee on the grounds a colonoscopy performed on May 19, 2016 was normal and claimant had made no further complaints since the date of his transfer on September 10, 2016 (Exhibit 12).

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]). A breach of 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]). "Conduct may be deemed malpractice, rather than negligence, when it 'constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician' " (Scott v Uljanov, 74 NY2d 673, 674-675 [1989]; Bleiler v Bodnar, 65 NY2d 65, 72 [1985]). Where the claimant's allegations relate entirely to the professional skill and judgment of his treating professionals, a medical malpractice cause of action is alleged (Maki v Bassett Healthcare, 85 AD3d 1366 [3d Dept 2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]).

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 [1974], cert. denied 419 US 1013 [1974]); Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]; Berger v Becker, 272 AD2d 565 [2d Dept 2000]; Perrone v Grover, 272 AD2d 312 [2d Dept 2000]). Where only nondiscretionary medical protocols are alleged to have been breached, a cause of action for ministerial neglect is stated (Kagan, 221 AD2d at 10, citing Public Officers Law 73 [1] [d]).(1) Under either theory, " 'where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is required to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to [the] claimant's injuries' " (DeMaille v State of New York, 166 AD3d 1405, 1406-1407 [3d Dept 2018], quoting Wood v State of New York, 45 AD3d 1198, 1198 [2007], see also Davis v State of New York, 151 AD3d 1411 [3d Dept 2017]; Knight v State of New York, 127 AD3d 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 [2015]; Myers v State of New York, 46 AD3d 1030, 1031 [3d Dept 2007]; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]; Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]).

Here, claimant's testimony and exhibits demonstrate that he repeatedly complained about the need for shoulder surgery and, to a much lesser extent, medical treatment for his stomach issues. The records also indicate that shoulder surgery was not provided until more than a year and one-half after claimant's first grievance was filed and more than two years after he first injured his shoulder in December 2014. However, claimant failed to provide any medical proof establishing the appropriate standard of medical care for his shoulder and stomach conditions, whether defendant's medical care fell below that standard of care, and whether any such deviation from the applicable standard of care was a proximate cause of his pain and suffering (see DeMaille, 166 AD3d at 1407). As a result, claimant failed to establish a prima facie case of either medical negligence or medical malpractice and the claim must, therefore, be dismissed as a matter of law.

Accordingly, the claim is dismissed.

Let judgment be entered accordingly.

January 16, 2020

Saratoga Springs, New York


Judge of the Court of Claims

1. Public Officers Law 73 (1) (d) defines "ministerial matter" as "an administrative act carried out in a prescribed manner not allowing for substantial personal discretion."