|Claimant short name:||WILLIAMS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||SHARON WILLIAMS, PRO SE|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 24, 2021|
|See also (multicaptioned case)|
The following papers were read on defendant's motion for summary judgment:
1. Notice of Motion with Affirmation of Thomas G. Ramsay, AAG, and attached exhibits, filed April 12, 2021;
2. Plaintiff's Opposition to Defendant's Motion with attached exhibits, filed June 16, 2021;
3. Reply Affirmation of Thomas G. Ramsay, AAG, affirmed July 10, 2021;
4. Filed papers: claim, verified answer.
Defendant moved for summary judgment in this medical malpractice case. The claim alleged that on December 26, 2012 Ms. Williams fell on a walkway at Albion Correctional Facility where she was incarcerated, allegedly injuring her right hand and wrist. She further alleged in her claim that the medical staff at Albion failed to treat these injuries on that day and many other days, that defendant did not take x-rays until March 7, 2013, and then failed to follow up on those x-rays or take additional scans. On June 2, 2015, she was transferred to Taconic Correctional Facility still complaining about pain in her right wrist. Finally, she had an MRI in July 2015 and was sent to a hand surgeon on July 22, 2015, who recommended surgery to remove a "large nodule" at the base of her right thumb. She underwent surgery at Mount Vernon Hospital on October 14, 2015 and ultimately returned to Taconic Correctional Facility on October 16, 2015. She claims that this surgery could have been avoided if she had been properly treated by the staff at Albion and that the delay caused prolonged pain and suffering and loss of range of motion.
Defendant submitted the affirmed report of Dr. Leon Sultan, an orthopaedic surgeon who examined claimant's right hand and thumb on November 24, 2020. He also reviewed her medical records from 1998 through 2016. Based on his review of the records and his examination, he concluded:
The burden of proof upon a defendant moving for summary judgment in a medical malpractice action has long been settled and requires it to establish "the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby." (Bubar v Brodman, 177 AD3d 1358, 1359 [4th Dept 2019] [internal quotation marks and citations omitted]; see Bristol v Bunn, 189 AD3d 2114, 2116 [4th Dept 2020].) Here, defendant met its initial burden on the motion by establishing the nonexistence of a departure from the accepted standard of care. (see Bristol, 189 AD3d at 2116; Bubar, 177 AD3d at 1360.)
Accordingly, the burden shifted to claimant to raise an issue of fact by submitting an expert's affidavit establishing such a deviation. (see Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 ; Camuglia v Page, 192 AD3d 1689, 1689-90 [4th Dept 2021].) Claimant's general and conclusory allegations of medical negligence and delay in treatment, unsupported by evidence establishing the requisite elements of medical malpractice or medical indifference, are insufficient to raise a material question of fact to defeat a provider's summary judgment motion. (see Alvarez, 68 NY2d at 325 .) Here, claimant failed to provide the required expert testimony, which entitles defendant to a judgment dismissing the claim. Moreover, nothing in her medical records proves that the defendant failed to address her complaints. To the contrary, claimant was seen by the infirmary physicians on several occasions and was evaluated by outside physicians who determined surgery was indicated. Whether the surgery was performed as quickly as claimant requested is not a basis for liability without an expert opinion that the delay was beyond the appropriate standard of care, which was not presented. Furthermore, aside from speculation, there is no expert opinion to correlate the December 26, 2012 fall with the appearance of the nodule two years later.
Accordingly, defendant's motion for summary judgment is granted and claim no. 128218 is dismissed with prejudice.
August 24, 2021
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims