Thomas v State of New York

[*1] Thomas v State of New York 2005 NY Slip Op 52230(U) Decided on October 18, 2005 Ct Cl Scuccimarra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 18, 2005
Ct Cl

Bernard Thomas, Claimant,

against

State of New York, Defendant.



105193



Claimant's attorney:Bernard Thomas, pro se. Defendant's attorney:Hon. Eliot Spitzer,

New York State Attorney General By: Barry Kaufman, Assistant Attorney General

Thomas H. Scuccimarra, J.

Bernard Thomas alleges in Claim Number 105193 that Defendant's agents failed to provide him with adequate and timely medical care, and also alleges constitutional violations stemming from such failure, while he was in the custody of the New York State Department of Correctional Services (DOCS). Trial of the matter was held at Sing Sing Correctional Facility on August 26, 2005.

Claimant testified that he had been prescribed the use of a back brace as well as psychiatric medication while in DOCS custody. On or about August 17, 2001 he was moved for a court appearance "in New York City"[FN1] to Downstate Correctional Facility (hereafter Downstate), and then again to Green Haven Correctional Facility (hereafter Green Haven), because Downstate was undergoing construction in its special housing unit (hereafter SHU). When he arrived at Green Haven to be held for the scheduled court appearance he was asked whether he was on medication, and was frisked. Correction Officers then took the back brace he was wearing, giving him a contraband receipt [Exhibit 1], although Claimant indicated that he had a permit for its use. He was told "this is special housing unit" and continued to be denied medication on two occasions, as well as the use of his back brace while he was at Green Haven.

Because he was denied his back brace and medication, he was in both physical pain and in "danger of a breakdown."

Claimant testified that it is DOCS' policy that an inmate is entitled to continue to receive medication and related medical care when he is transferred from one facility to another, and submitted Directive 4918. [See Exhibit 5]. He claimed that employees at Green Haven failed to adhere to DOCS' policy.

Claimant filed a grievance relative to officers seizing his back brace and denying him medication. Claimant presented some documentation of his efforts. [Exhibits 2, 3, 4]. He submitted a letter he wrote to the Inmate Grievance Resolution Committee (IGRC) dated August 17, 2001 complaining of the alleged denial of medical treatment, including removal of his back brace [Exhibit 2]; the Superintendent's decision concerning his grievance [Exhibit 3]; and the Central Office Review Committee's (CORC) determination upon appeal. [Exhibit 4]. The CORC determination includes the finding that "CORC has not been presented with sufficient evidence to substantiate any malfeasance by staff," and that ". . . the grievant's back brace was examined by both medical staff and security staff at Green Haven CF. Prior to being issued, the grievant was transferred to Southport CF. The grievant received the back brace upon his arrival at [*2]Southport CF and continues to receive appropriate medication" [ibid.].

He also provided a copy of a memorandum from "Rich Laux, PA" directed to "DSS Dann" on the letterhead of Auburn Correctional Facility dated June 29, 2000 indicating "It is medically indicated that the above inmate [Bernard Thomas] be allowed to have his lumbar sacral brace from his property . . ." [Exhibit 6]. Claimant said he "did not have to go to every jail and get approved by every jail" for medically prescribed equipment. Although he could not testify from his own knowledge, he claimed that Green Haven, too, "would have had this information."

On cross-examination, he admitted that when he was received at the SHU in Green Haven he was seen by the nurse, who prescribed Tylenol for him.

No other witnesses testified and no other evidence was submitted.

It is "fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons," including proper diagnosis and treatment. Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied, 76 NY2d 701 (1990).

In a medical malpractice claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A Claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. The " claimant must [demonstrate] . . . that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his . . . injuries' (Parker v State of New York , 242 AD2d 785, 786)." Auger v State of New York, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept 1976) lv denied 40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).

If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State's employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony. Coursen v New York University Hospital-Cornell Med. Center, 114 AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for ministerial neglect if its employees fail to comply with an institution's own administrative procedures and protocols for dispensing medical care to inmates. Kagan v State of New York, 221 AD2d 7,10 (2d Dept 1996).

Although the Claimant submitted to the Court a copy of a facility guideline that would appear to have relevance since it is entitled "Inmate Health Care During Transfer" [see Exhibit 5], without being placed in a context by testimony it is an empty document. Similarly, and assuming his medications were withheld and his back brace was removed Claimant has not established that there were other than non-medical or security reasons for such actions, or that he suffered any harm.

In this case, only the testimony of the Claimant has been presented in support of any claim of malpractice. No competent medical evidence was presented, through a treating physician or an expert witness whose opinion was based upon the available medical records, to [*3]support the allegation of medical malpractice. There is no medical evidence on any medical issue and thus no proof that accepted standards of care were not met. Accordingly, the claim of medical malpractice must be dismissed.

Additionally, from this record there is no indication that the actions of medical caregivers amounted to simple negligence or ministerial neglect. Coursen v New York University Hospital-Cornell Med. Center, supra; Kagan v State of New York, supra. To the extent the claim can be read to assert such theories, any cause of action for negligence or ministerial neglect is also dismissed.

Finally, no evidence or argument was presented with regard to the allegations in the Claim asserting violation of Claimant's "8th amendment rights (article 1, & 5 deliberate indifference and cruel and unusual punishment)" and "rights guaranteed by the New York State Constitution, (articles 1, & 5)." [Claim Number 105193, ¶ 2].

A claim alleging deliberate indifference and cruel and unusual punishment premised upon violation of "8th amendment rights" is based upon a violation of the Federal Constitution, and should be pursued pursuant to 42 USC §1983. See De La Rosa v State of New York, 173 Misc 2d 1007 (Ct Cl 1997). No cause of action against the State of New York will lie in the Court of Claims for alleged violations of an individual's rights under the United States Constitution [see Welch v State of New York, 286 AD2d 496, 498 (2d Dept 2001); Zagarella v State of New York, 149 AD2d 503 (2d Dept 1989); Davis v State of New York, 124 AD2d 420, 423 (3d Dept 1986)], in that the State is not a "person" amenable to suit pursuant to 42 USC §1983. See also De La Rosa v State of New York, supra.

With respect to alleged violation of the New York State Constitution, the factors the Court must consider to determine if a cause of action for a State constitutional tort is properly brought in the Court of Claims are whether: (1) the applicable constitutional provision is self-executing; (2) monetary damage remedies further the purpose of the underlying constitutional provisions and necessarily assure its effectiveness; (3) the provisions are such that they impose a clearly defined duty on the State officers and/or employees; (4) declaratory and injunctive relief are inadequate; and (5) money damages necessarily deter governmental conduct and make the claimant whole. Brown v State of New York, 89 NY2d 172 (1996).

In New York, constitutional provisions are presumptively self-executing. Brown v State of New York, supra at 186. Violation of every self-executing provision will not always support a claim for damages however. Only where it is necessary to ensure the effectiveness and promote the purposes of the allegedly violated provision will a constitutional tort remedy be implied. Brown v State of New York, supra at 191. Deliberate indifference to an inmate claimant's medical needs to a degree that it constitutes cruel and unusual punishment in violation of prohibitions within the State Constitution has been found to be an actionable constitutional tort. De La Rosa v State of New York, supra; Davis v State of New York, 5 Misc 3d 1011(A) (Ct Cl 2004). Claimant has not, however, established deliberate indifference after a full trial of the matter, and accordingly, the cause of action premised upon constitutional tort cannot be sustained.[FN2] [*4]

The Defendant's motion to dismiss for failure to establish a prima facie case, upon which decision was reserved at the time of trial, is hereby granted, and Claim Number 105193 is dismissed in its entirety.

Let Judgment be entered accordingly.

Appendices: Footnotes

Footnote 1: All quotations are to trial notes or audio recordings unless otherwise indicated.

Footnote 2:Additionally, there may be other relief available through a proceeding brought pursuant to article 78 of the Civil Practice Law and Rules that could provide this Claimant with an alternative remedy, namely an order directing Defendant's agents to consistently provide prescribed medical care to Claimant within applicable standards. See Domenech v Goord, 20 AD3d 416 (2d Dept 2005).