Opinion
# 2012-049-110 Claim No. 116017
09-04-2012
FULGHUM v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2012-049-110 Claimant(s): MICHAEL FULGHUM Claimant short name: FULGHUM Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) The caption has been amended sua sponte to reflect : the proper defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 116017 Motion number(s): Cross-motion number(s): Judge: David A. Weinstein Law Office of Antoinette Williams, P.C. Claimant's attorney: By: Antoinette Williams, Esq. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Suzette C. Rivera, Assistant Attorney General Third-party defendant's attorney: Signature date: September 4, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This decision follows the liability phase of a bifurcated trial on the claim of Michael Fulghum, which took place on April 4, 2012. Fulghum's claim arises out of his allegations regarding an incident on January 8, 2008 (the "January 8 incident"), while Fulghum was incarcerated at Edgecombe Correctional Facility ("Edgecombe"). Claimant avers that on that date, correction officer "John Doe" (identified by claimant at trial as Officer Jeffrey Archer) forced him to lift debris that aggravated a pre-existing umbilical hernia. The claim asserts causes of action against defendant for:
A hernia is defined as follows, in Claimant's Ex. 2 at 100: "The abdominal organs are held inside by a layer of flat muscles. A hernia is a weak spot in the muscle layer."
•negligence (causes of action 1 and 2), in that Archer directed claimant to lift heavy objects, despite defendant's knowledge of claimant's hernia; •medical malpractice (causes of action 4 and 7), in that defendant failed to treat claimant appropriately the day of the injury, and delayed his surgery thereafter; •verbal harassment (cause of action 3), in that Doe "verbally abused" Fulghum before and on January 8, 2008; •failure to pay claimant for his work (cause of action 5); •negligent hiring, training and supervision, in regard to Doe (cause of action 6); •federal constitutional claims (cause of action 8); and •deliberate indifference to claimant's constitutional rights (cause of action 9).At trial, Fulghum testified on his own behalf, as follows:
In 2004, Fulghum served a 90-day sentence at Willard Drug Treatment Campus ("Willard"), following a conviction for possession of a controlled substance. During Fulghum's physical examination prior to entering the facility, he was diagnosed with a hernia. This condition is reflected in a number of documents in claimant's Department of Correctional Services ("DOCS") medical record during his incarceration at Willard. There is, for example, a reference in Fulghum's ambulatory health record for October 20, 2004, which reads:
By Chapter 62 of the Laws of 2011, DOCS and Division of Parole were merged to form the Department of Corrections and Community Supervision ("DOCCS"). The Department is referred to as "DOCS" throughout this decision, unless the reference is to a matter that post-dates the merger.
"Umbilical Hernia - has had since summer (beginning of August) was given back brace for support of abdomen - does not have it on[.] Pain is much worse!"
Contrary to this statement, Fulghum testified at trial that he had the hernia from birth.
(Cl. Ex. 2 at 166).
A "Comprehensive Medical Summary Form" prepared by a physician the following month also stated that claimant had an umbilical hernia (Id. at 192), and a note in his ambulatory health record on November 20, 2004 referenced "pain from umbilical hernia," and from claimant's failure to wear his back brace (Id. at 165).
Apparently in response to the hernia, two "Physical Limitations" Permits, dated September 15 and October 22, 2004, appear in Fulghum's medical record. Each is signed by a medical doctor, and states that Fulghum cannot run, perform certain exercises, and lift more than 25 pounds (Cl. Ex. 2 at 196-97).
Upon his release from Willard, Fulghum worked as a cook until he was again incarcerated on March 22, 2006. Upon entry into DOCS custody, he was once more subject to a physical examination, at Downstate Correctional Facility ("Downstate"). Fulghum testified that he told correctional officials at the time that he had a hernia, and did so again when he was transferred to Hale Creek Correctional Facility ("Hale Creek"), a work-release alcohol and substance abuse treatment center, on May 9, 2007. The hernia is also mentioned in the documentary record from this period - on the classification form prepared at Downstate, and dated January 24, 2007 (Cl. Ex. 2 at 25); on an ambulatory health record note dated August 14, 2007 stating: "Abd. hernia states getting larger painful lifting" (Id. at 204); and on a medical record dated August 20, 2007 referencing a "small hernia" (Id. at 38). Nonetheless, a "physical assessment" for Fulghum's placement in a temporary release program, dated April 5, 2007 and signed by a medical doctor, permitted Fulghum to do manual labor without restriction (id. at 130-31). Fulghum's medical record, introduced into evidence at trial, does not reflect any subsequent changes to the April 5 assessment, until after the January 8 incident. There was no testimony or other evidence as to why the limitations imposed on Fulghum had changed since the 2004 assessment.
According to Fulghum's testimony, at Hale Creek he was subject to a limitation on lifting of 25 pounds, although this is not documented in his medical record.
Fulghum was transferred to Edgecombe on 163rd Street in Manhattan, in November 2007. He testified that at both Hale Creek and Edgecombe, he performed certain limited physical tasks, such as washing dishes and picking up papers on the grounds.
The transcript of Fulghum's trial testimony states that this facility is located on 63rd Street, but I take judicial notice of the fact that the address listed for Edgecombe on the DOCCS website is at 611 Edgecombe Avenue, between West 163rd and 164th Street (see http://www.doccs.ny.gov/faclist.html).
In regard to the January 8 incident, Fulghum testified as follows: On that date, he went out to look for work (a requirement of his placement at Edgecombe), leaving the facility at 8:00 a.m. He traveled to Brooklyn, and then "worked [his] way back" to Columbus Circle in Manhattan. There, he spent a half hour working as a short order cook at the Triangle Diner, where he was offered regular employment. Fulghum returned to the facility early - between 3:00 and 3:30 p.m., according to his testimony - so that he could finish his paperwork and be eligible to begin regular work that Friday.
Fulghum stated that he was waiting to be searched upon reentering the facility, when Officer Archer approached him and two other inmates, and told them to go upstairs, take off their street clothes, put on their prison uniforms, and meet him on the first floor. Fulghum described his prior interactions with Archer as follows:
Q: Prior to January 8, 2008, did you have any prior encounters with - with Jeffrey Archer?
A: Yes.
Q: Okay. And - and describe one of those encounters?
A: He would like come around real early in the morning and turn the lights on. And a little rigid, you know, get out of those beds, clean up, you know a little rigid like that.
Q: Any other encounters?
A: No. No more.
When Fulghum and the other prisoners returned to the ground floor, they were told to pick up leaves and debris around the perimeter, something Fulghum had not been asked to do previously on days he went out for a job search. They engaged in such work for about a half hour, during which time Archer made various critical comments. After the leaves were bagged and pulled to a dumpster, Archer showed the inmates three BTU (i.e. air conditioning) units, each weighing between 400 and 450 pounds, and told them to put the units in the adjacent dumpster. Fulghum objected, stating (in his words): "excuse me sir, I shouldn't pick up them items, I have a hernia." Archer responded, as Fulghum characterized it: "what part of this don't you fucking understand? I am not asking you to [do] this shit, I'm fucking telling you to do it."
Following Archer's pronouncement, Fulghum and the other two inmates picked up the top unit, raised it over their heads and "tipped it" into the dumpster, which was "an arm reach" taller than claimant. Fulghum testified that at that moment, he felt a sharp pain in his stomach, unlike anything he had felt before. Nonetheless, the prisoners lifted the next unit into the dumpster, and the pain worsened. They were unable to lift the final unit, which was "stuck to the ground" in the cold.
Fulghum used his hands to show his recollection as to the units' size, and when asked to verbalize his estimate, said they were about four feet high and six feet long. Defendant argues that this statement shows that his testimony was incredible, since the top unit would have been well above the prisoners' heads if they had these dimensions. I do not believe that this particular aspect of claimant's testimony reflects poorly on the his credibility, though. Claimant made a rough estimate on the spot, and his testimony at worst indicates his inability to quickly estimate the size at which he was gesturing.
Fulghum entered the facility, and told another correction officer that he felt pain in his stomach. The officer took Fulghum to see a nurse, who said there was nothing she could do, and he would have to see an outside doctor. Fulghum testified that while showering in preparation for his exit, he noticed a swelling in his stomach.
The nurse gave Fulghum a transportation pass, which he in turn showed to Archer. Archer handed the pass back and said: "what do you think this is, a cab stand? This is no cab stand. Walk your black ass to the doctor." Fulghum took the subway and walked to North General Hospital on 125th Street. There, the doctor gave him pain medication, told him surgery might be necessary, and asked that he come back. Fulghum made two additional visits to this hospital, on January 11 and 22, and was scheduled for hernia repair surgery on February 1.
That surgery was delayed for reasons not made clear in the record. Fulghum was subsequently transferred to Ulster Correctional Facility, and then to Arthur Kill Correctional Facility. According to Fulghum, he received no treatment during this period except for painkillers. He ultimately underwent hernia repair surgery on July 21, 2008.
Various documents introduced by claimant confirm that he complained to medical staff on January 8 about pain in his stomach, and was ultimately diagnosed as having exacerbated his hernia. An entry in Fulghum's medical record concerning that date reads as follows: "Exacerbation of umbilical hernia with [complaints of] abdominal pain. Hernia palpatable at umbilical site with tenderness to touch. To be sent to hosp. ER for evaluation/congenital ventral umbilical hernia eval for surg intervention" (Cl. Ex. 2 at 4). The same day, Edgecombe medical staff filled out a request for outside consultation, summarizing Fulghum's condition as follows: "[complains of p]ain in abdomen, after lifting heavy object and bags of leaves and soil. Swelling noticed on abdomen and pain to touch, Advise to send to ER" (Id. at 215). A similar account is set forth in a note made at 2:25 p.m. that day in claimant's ambulatory health record, which says: "[complains of] pain to abdomen. [Inmate] on outside detail all day raking leaves and picking up leaves and soil. Picked up heavy object to put in dumpster. Now has swelling and pain in abdomen. Dr. [name unclear] was called advise to send to E.R." (Id. at 212). A health note on January 14 says Fulghum "went to ED for abdominal wall hernia exacerbated by heavy lifting last week" (Id. at 219).
Prison authorities also reacted to these developments by placing certain restrictions on claimant and on the terms of his incarceration. A January 9 progress note states that Fulghum "[r]eports discomfort on movement and climbing on to top bunk," and Fulghum was given "bottom bunk" and "no heavy lifting" permits, as set forth in memoranda issued January 9 (Cl. Ex. 2 at 212-13). The restriction on lifting was tightened in a medical permit dated February 8, 2008, which states that Fulghum should lift no more than 5 pounds, and should not engage in various sports activities (Id. at 9). Fulghum was also exempted from further job search. Despite these restrictions, the hernia continued to give Fulghum discomfort. An April 1, 2008 entry in Fulghum's medical record cites a statement by claimant that under new programming he is compelled to sit eight hours a day, and his "hernia starts to swell" (Id. at 229).
On cross-examination, defendant called into question several aspects of claimant's narrative, and in particular his claim that he engaged in the work in question after returning from a day of job search. Fulghum conceded that a document he had signed (Def. Ex. D) permitted him to leave the facility only on Monday, Thursday and Friday, while January 8, 2008 was a Tuesday. He also acknowledged that he had to "buzz" in and out of the facility, but a printout covering January 8 indicated that claimant was not authorized to leave the facility that day until 3:00 p.m., when he received a medical authorization to do so, and he did not actually leave until 3:46 p.m.
Defendant also questioned Fulghum as to why he was not subject to any restriction in his temporary release placement form for April 2007, which indicates that he can perform manual labor (Def. Ex. A). Fulghum responded that he had not prepared, reviewed or signed that document.
At the close of claimant's case, defendant moved to dismiss the claim on the ground that no expert testimony was presented to support the negligence and medical malpractice causes of action; other causes of action lacked supporting evidence; and claimant's testimony was not credible. That motion was granted as to claimant's third (verbal harassment); fifth (failure to pay on work release), sixth (negligent hiring); and eighth (federal constitutional violation) causes of action, on the basis that no evidence was introduced in support of thereof, and in any case the federal constitutional claim was not properly before the Court of Claims. The Court reserved decision as to the remaining causes of action.
For its part, defendant offered the testimony of Correction Officer Jeffrey Archer. He testified that in January 2008, he worked his regular shift between 7:00 a.m. and 3:00 p.m., and was in charge of the outside perimeter detail, which entailed cleaning up the outer grounds of the facility. Inmates with medical restrictions were not included in this detail, according to Archer, because they were screened by the department for medical conditions.
Archer stated that he had no recollection of the incident described in Fulghum's testimony, but said that had an inmate advised him of his medical condition, he "would have" notified a supervisor to come to the area, and if the inmate was incapacitated, the "medical department would have come out and evaluate[d] what was going on." Archer later said that, if an inmate had such work restrictions, the inmate could either inform him, or "inform the facility." On cross-examination, however, while Archer testified that he did not recall telling Fulghum to lift the air conditioning unit on the day in question, he said that it was "possible" that he witnessed Fulghum "get injured," although he did not remember this having occurred. He also did not recall whether Fulghum told him he could not lift heavy objects, whether he told claimant to walk to the hospital, or whether he discussed the incident with his supervisor or with other correction officers or medical personnel.
In response to a question about what would have occurred if Fulghum had refused a directive to lift the air conditioners, Archer said that claimant was "entitled to refuse," but then said that he was not "permitted" to do so, and a misbehavior report would have been written in the event that he disobeyed a correction officer's directive.
Discussion
I. Claimant's Negligence Causes of Action
In light of the Court's ruling at trial on defendant's motion to dismiss, only claimant's first, second, fourth, seventh and ninth causes of action remain extant. The primary causes of action addressed by the evidence at trial are the first and second, which are essentially overlapping claims of negligence. These claims are premised on Fulghum's allegation that he exacerbated his hernia after following a directive by Archer to lift heavy items; that Archer persisted in his directive despite being told by claimant that he should not engage in such activity; and that the facility "knew or should have known" of Fulghum's medical condition.
The first cause of action sets forth claimant's allegations regarding the January 8 incident, but does not cite the legal basis on which claimant is seeking recovery. The second cause of action realleges every allegation in the claim, and states that defendant's conduct constituted negligence (see Claim ¶¶ 11-17).
Before I can consider whether claimant has successfully proven the elements of a negligence claim, I must assess the credibility of the evidence before me, and sort through the various challenges the State makes to claimant's account.
A. The Evidentiary Record
The State has raised several concerns regarding the veracity of claimant's narrative, and in particular, his statement that the injury in question occurred after he had spent the morning looking for a job. For a number of reasons, that chronology seems clearly inaccurate. For one thing, claimant asserted that he returned to the facility between 3:00 p.m. and 3:30 p.m. However, the note in Fulghum's ambulatory health record that first discloses his injury was made at 2:25 p.m., and states that the inmate had been "on outside detail all day raking leave[s] and picking up leaves and soil." Moreover, Archer gave specific and credible testimony that he went off duty each day at 3 p.m. Further, the documentary evidence introduced by the Defendant indicated that claimant did not sign out of the facility on January 8 until he left for the hospital at 3:46 p.m. and, in any event, the day in question (a Tuesday) was not one of the weekdays on which he was authorized to leave the grounds of Edgecombe for job search (see Def. Ex. D). In sum, the documentary record is at odds with Fulghum's timetable.
Other details of claimant's story are called into question by this apparent inaccuracy in Fulghum's chronology. For example, claimant stated that when he arrived back at the facility, he was told by Archer to change from the street clothes he had worn on his job interviews, into his prison uniform. Further, he indicated that the officer's request was unusual, as the general practice was that he would not work at the facility on days when he engaged in job search. These details are inconsistent with the records indicating that Fulghum was at the facility all day, until he left for his medical examination in the late afternoon.
There are other problematic aspects of Fulghum's account. In regard to Archer, Fulghum stated in his verified claim that the officer (referred to as "John Doe") "engaged in a pattern of harassment" toward claimant prior to January 8, in which he "constantly verbally abused" him, called him various insults and epithets, and threatened to lock him up and revoke his privileges. At trial, however, Fulghum stated that he had "no other encounters" with Archer beyond interactions in which the officer was "a little rigid" on matters, such as "clean up."
The verified claim is not an exhibit in evidence. Nonetheless, "[p]leadings are always before the Court without being formally offered in evidence" (Rice v Ninacs, 34 AD2d 388, 392 [4th Dept 1970], quoting Newton v Livingston County Trust Co., 231 App Div. 355, 362 [4th Dept 1931]; see also Holmes v Jones, 121 NY 461, 466 [1890] ["Statements, admissions and allegations in pleadings are always in evidence for all the purposes of the trial of the action"]).
In addition, claimant testified that after the January 8 incident, he handed his medical pass to Archer, who responded by directing that he walk to the hospital. But by the time Fulghum left the facility, Archer's time on duty had already ended. And the medical pass states clearly that Fulghum is to take public transportation. It does not seem credible, then, that this conversation occurred - particularly since Fulghum's recollection has proven faulty on much broader details.
Finally, I find it difficult to credit Fulghum's testimony that he felt a pain unlike any other he had experienced before upon lifting the first BTU, but then proceeded to lift the second, and attempted to lift the third unit, without alerting Archer or any other prison employee to his pain.
Defendant contends that these problems in claimant's account indicate that he was "completely dishonest" (Def. Br. at 7), and that his testimony should be rejected in its entirety. I do not find that the timing errors in Fulghum's testimony reflect intentional misrepresentation, however, since it is unclear what advantage claimant would have gained by fabricating his actions on the morning of January 8, 2008. Moreover, the relevant medical records indicate that on that day, Fulghum told prison medical personnel that he had been working outside, had lifted a heavy object, and had felt pain in his abdomen. Subsequent tests indicated that his hernia had, indeed, worsened from its previous state, to the extent that it needed surgical treatment, and the prison immediately placed more severe restrictions on his work than had been in force before.
On the basis of the foregoing, I find the following: certain aspects of Fulghum's assertions have support in the documentary record, and these I credit: he felt discomfort at some time while performing work outside on January 8, 2008, saw medical staff as a result, and it was determined (after Fulghum visited an outside hospital) that at some point his hernia had worsened and required surgical treatment. Moreover, the record evidence also makes clear that DOCS was aware of Fulghum's hernia. The significant errors in Fulghum's account, however, call into question the strength of his recollection as to the specific details of the incident, and I cannot credit, in particular, his account of his interaction with Officer Archer.
With these findings in mind, I turn now to the questions of whether he has proven negligence on the part of the State, and that such negligence proximately caused his injury.
B. The Legal Merits
When an inmate participates in a prison work program, the State has a "duty to provide [him] with reasonably safe equipment as well as sufficient warnings and instructions for the safe operation of the work and equipment " (Letterese v State of New York, 33 AD3d 593 [2d Dept 2006]; Manganaro v State of New York, 24 AD3d 1003, 1004 [3d Dept 2005]). In short, it must conduct the program with reasonable care, and furnish inmates a reasonably safe place of work (see Vizzini v State of New York, UID No. 2004-013-522 [Ct Cl, Patti, J., Dec. 22, 2004] ["the State has a duty to exercise reasonable care in providing for the safety of inmates participating in work programs and to provide them with a reasonably safe place to work"]; Johnson v State of New York, UID No. 2007-030-009 [Ct Cl, Scuccimarra, J., Apr. 9, 2007] ["[t]he State has a duty to exercise reasonable care in providing inmates incarcerated in its prisons who are participating in work programs with safe equipment, adequate training and supervision and a reasonably safe place to work"]). The State is not, however, an insurer of these participants' health and safety, and its negligence cannot be inferred from the occurrence of an injury (Bernard v State of New York, 34 AD3d 1065, 1067 [3d Dept 2006] [internal quotation and citation omitted]).
An inmate, for his part, must use "ordinary care" in engaging in work through such programs, but courts "take into consideration the special circumstances that confront an incarcerated inmate in assessing whether the inmate was comparatively negligent" (Id. at 1068). In particular, a prisoner will not be found to have contributed to the accident because he chose to obey an order rather than "subject[] himself to possible disciplinary measures" (id.).
The gravamen of Fulghum's claim is that the State failed in its duty to ensure him a reasonably safe work environment by directing him to lift a heavy object - which directive he could not refuse without sanction - despite its knowledge of his hernia. To prevail on this claim, Fulghum must not only demonstrate a breach of duty, but also that such breach was the proximate cause of his injury (see Stephenson v City of New York, 85 AD3d 523, 526 [1st Dept 2011]). For reasons set forth below, I cannot find in claimant's favor on either of these issues in the absence of expert testimony.
As a general rule, a claimant cannot prevail on the basis of lay testimony when the question at issue is not "a matter of common knowledge" (see Duffen v State of New York, 245 AD2d 653, 653 [3d Dept 1997]) or "within the ordinary experience and knowledge of lay persons" (Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005]). This is the case in regard to "most medical conditions" (see Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 334 [1986] ["most medical conditions" are "beyond the understanding of laymen" and require proof by expert testimony]). Nonetheless, there are circumstances - "rare but recognized" (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 22 [2d Dept 2009]) - where a lay factfinder may reach medical conclusions without the aid of an expert.
In regard to whether prison officials breached their duty of reasonable care, such a breach may be found absent expert testimony when a prison disregards a "professional medical direction"- that is, when a doctor has told prison staff what sort of conditions are required for an inmate in light of his medical condition, and the prison ignores the finding (Smith v State of New York, UID No. 2004-018-340 [Ct Cl, Fitzpatrick, J., Oct. 14, 2004], citing Mossman v Albany Med. Ctr. Hosp., 34 AD2d 263, 264 [3d Dept 1970]; accord Reynolds v State of New York, UID No. 2007-039-064 [Ct Cl, Ferreira, J., Feb. 21, 2008]). A lay factfinder cannot, however, determine whether a medical directive should have been in force in the first instance, without expert testimony (see Safier & Vogelman v Kalvin, 150 Misc 2d 1002, 1005 [App Term 2d Dept 1991]).
In the present case, while there is ample evidence that prison authorities were aware of Fulghum's hernia, the record does not reflect consistent direction by medical staff in regard thereto. Thus, a work permit signed by a doctor in 2004 restricted Fulghum to lifting no more than 25 pounds. In 2007, however, another doctor signed a permit authorizing Fulghum to perform manual labor without restriction. As a result, at the time of the January 8 incident, there was no medical directive in force limiting the tasks Fulghum could perform. To find nonetheless that prison officials acted negligently in this case would require that I determine the 2004 medical assessment was correct, while the 2007 assessment was in error. This would seem a quintessential matter outside the purview of a lay factfinder, and requiring expert testimony.
Claimant's negligence claim is premised not only on the prison's general awareness of Fulghum's hernia, but on Fulghum's purported statement to Archer that he could not lift the BTU units because of his hernia, and Archer's purported insistence that he nonetheless carry out this task. For reasons stated above, I decline to credit this testimony. Even if it were credited, without expert testimony showing a restriction on Fulghum's activity was medically warranted, I cannot find that Archer was negligent in directing him to lift the units just because Fulghum told him he could not.
In any event, even if I were to find that the State's negligence could be proven without expert testimony, such proof would still be required to show causation (see Koehler v Schwartz, 48 NY2d 807, 808 [1979] [even if doctor's "failure to adhere to . . . precautionary measures . . . would amount to negligence," expert was still needed to prove causation]).
Undoubtedly, there are instances where the connection between an action and the injury that results is so direct and obvious that proximate causation is a matter "within the experience and observation of an ordinary layman" (Lanpont v Savvas Cab Corp., 244 AD2d 208, 212 [1st Dept 1997], quoting Mitchell v Coca-Cola Bottling Co., 11 AD2d 579 [3d Dept 1960]). As the Court of Appeals explained decades ago:
"In many cases jurors might find it difficult, without the aid of medical evidence, to connect conditions complained of with an accident but the results may be of such a character as to enable them to draw their conclusions from their own knowledge or experience. Thus, if a plaintiff testified that after he was struck in the eye he had what is vulgarly known as a black eye, it would be unnecessary to produce an expert witness to say that an extravasation of blood resulting in ecchymosis might follow such a blow. On the other hand, remote and unusual effects of physical injuries, such as cancer or tuberculosis, would call for more than a layman's knowledge of cause and effect."
(Shaw v Tague, 257 NY 193, 195-96 [1931] [citations omitted]; accord Ingleston v Francis, 206 AD2d 745, 746 [3d Dept 1994]).
Instances where no expert was needed to attest to the causal connection between defendant's negligence and the resulting injury have included cases where a physical trauma caused an immediate harm (see O'Neill v Pelusio, 65 AD2d 914, 914 [4th Dept 1978] [no expert needed to show blow to eye resulted in "ruptured globe"]; Ingleston, 206 AD2d at 746 [no expert to prove swelling in thigh resulted from bang received there during automobile accident]); where plaintiff suffered nausea or other adverse reaction after finding an insect or other noxious object in food or drink (see Mitchell, 11 AD2d at 579-80); and where emotional harm resulted from an obviously disturbing event (see Allinger v City of Utica, 226 AD2d 1118, 1120 [4th Dept 1996] [the "conclusion that a mother and her young child may . . . suffer emotional trauma from the sudden, explosive entry into their apartment of strangers carrying guns does not require special knowledge or training"]). In contrast, expert testimony has been required to establish a connection between a particular trauma and soft tissue damage "beyond the observation of the lay jury" (Brown v County of Albany, 271 AD2d 819, 821 [3d Dept 2000], lv denied 95 NY2d 767 [2000]), to show that emotional distress "accelerated the progression of [claimant's] illness and resulted in deterioration of his health," (Tatta v State of New York, 20 AD3d 825, 827 [3d Dept 2005]), and in almost all medical malpractice cases (see Flaherty v Fromberg, 46 AD3d 743, 745 [2d Dept 2007]). Whether or not a lay witness's testimony on causation is sufficient must be adjudged alongside such additional proof as is adduced, such as medical records (see Alvarez v Mendik Realty Plaza, 176 AD2d 557, 558 [1st Dept 1991] [plaintiff's testimony "when considered along with the medical records detailing [plaintiff's] hospital stay and surgery, adequately established . . . causation"]; Madsen v Merola, 288 AD2d 520, 521 [3d Dept 2001] [there was "sufficient expert evidence" adduced to show that a motorcycle accident caused a groin injury where hospital records referenced such an injury following the accident, and reported physical manifestations thereof]).
I find that expert testimony was required to prove causation in the present case, for several reasons. First, the exacerbation of a hernia is more akin to those harms found beyond a layperson's understanding, than to injuries that flow immediately and directly from a trauma in a manner that a non-expert can adjudge. Indeed, while there is no decision directly on point, caselaw relating to hernias lends support to this conclusion (see Matter of Alpert v Powers, 223 NY 97, 101 [1918] [rejecting claim that lifting in the course of employment caused "disease" of hernia; "[n]o medical evidence was given . . . as to the nature or cause of hernia, and no attempt was made to prove that the lifting in this case could have produced the rupture which later developed"]); Herrera v Braunstein, 10 Misc 3d 104, 105 [App Term 1st Dept 2006] [ordering new trial for damages on claim that assault caused, inter alia, aggravated hernia, based in part on claimant's failure "to offer any medical evidence"]; Escalera v State of New York, UID No. 2010-040-032 [Ct Cl, McCarthy, J., June 22, 2010] [inmate claim that hernia resulted from kick in the stomach by correction officer dismissed; there was neither any "indication" in the medical record that the hernia had resulted from the kick, nor any expert testimony on this issue]; McNeal v National R.R. Passenger Corp., 2008 WL 3851816 at *8 [ND NY Aug. 15, 2008] [dismissing on summary judgment claim alleging burdens of job had led plaintiff to develop hernia; "connection between a surgical hernia and plaintiff's work on the railroad is not of a kind that would be obvious to laymen and . . . expert proof of causation is therefore necessary"]).
Claimant argues, nonetheless, that the connection between lifting a heavy object and exacerbating a hernia is sufficiently common knowledge that it may be determined by a lay factfinder. The central evidence for causation, however, is Fulghum's own testimony that he felt tremendous pain in his stomach at the precise moment he began to lift the BTU units. Yet, as noted at length above, there are numerous flaws in Fulghum's overall chronology, which preclude me from crediting his precise timeline. Further, Fulghum's medical records indicate that his difficulties with his hernia did not suddenly arise on January 8, 2008. In August 2007, he complained that certain unspecified lifting was causing him pain, and the medical record noted that his hernia was growing larger (Cl. Ex. 2 at 204). Whether such prior circumstances, any other activities, or the work Fulghum performed on January 8 was the primary causal factor in worsening his condition, is something a lay factfinder simply cannot determine on the present record without expert assistance.
Finally, claimant suggests that the Court should take into account the doctrine of res ipsa loquitur in deciding his case (Claimant's Br. at 7-8). The elements of the doctrine are "(1) the event must be of a kind [that] ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action or contribution on the part of the [claimant]" (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [1986] [quotations and citations omitted]). The event that allegedly injured Fulghum here - the lifting of the BTU unit - was neither the kind that does not occur without negligence, nor did it involve an instrumentality exclusively within defendant's control. In any case, res ipsa loquitur is "a form of circumstantial evidence that creates a permissible inference of negligence that may be accepted or rejected by the factfinder" (Naughton v City of New York, 94 AD3d 1, 11 [1st Dept 2012]). Thus, this doctrine at most may be used to prove negligence; it does not assist claimant in showing that particular conduct proximately caused an injury.
In light of the foregoing, I find that claimant has failed to prove a cause of action for negligence, and I therefore dismiss the first and second causes of action.
II. Other Causes of Action
Claimant's fourth and seventh causes of action relate to the treatment he received after the January 8 incident. The fourth cause of action alleges that he was harmed by being forced to walk to the hospital on that day. The seventh cause of action alleges that he was injured by the delay between the incident and the surgical treatment he received that summer.
Where the "the gravamen of the [cause of action] is negligence in furnishing medical treatment" it sounds in medical malpractice (Scalisi v New York Univ. Med. Ctr., 24 AD3d 145, 146-147 [1st Dept 2005] [citation omitted]). To prevail on such a cause of action, claimant must not only show proximate cause, but that the misconduct (i.e., compelling him to walk to the hospital or delaying his surgery) was a deviation or departure from accepted medical practice (see Frye v Montefiore Med. Ctr., 70 AD3d 15, 17-18 [1st Dept 2009]). That is not a matter within the ordinary experience of lay persons, and expert testimony is required for claimant to prove that element, as well as proximate causation (see Mosberg v Elahi, 80 NY2d 941, 942 [1992]; Caruso v Northeast Emergency Med. Assoc., P.C., 85 AD3d 1502 [3d Dept 2011]). Thus, these causes of action must fail due to the same defect as Fulghum's negligence claims: they concern matters beyond the competence of a lay factfinder, but are not supported by expert testimony.
To the extent the decision to compel Fulghum to walk was made by someone (such as Archer) who was not a medical professional, and whose actions do not fall within the rubric of malpractice, expert testimony was still required to show that this action proximately caused claimant injury.
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Claimant's ninth cause of action alleges deliberate indifference on the part of defendant to constitutional rights of persons in their facilities, including failure to supervise and train employees, investigate their misdeeds, and compensate inmates. There is no evidence of any of these constitutional violations in the record, and to the extent this claim piggybacks off claimant's assertions of negligence, it must fail for the same reason as the underlying negligence claim. In any case, since the claim alleges a constitutional violation, it is not properly asserted in the Court of Claims (see Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001], quoting Cavanaugh v Doherty, 243 AD2d 92, 96 [3d Dept 1998] [internal quotations omitted] [federal constitutional claims appropriately brought under 42 USC § 1983 in Supreme Court]; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150 [3d Dept 2009] [no state constitutional claim may be asserted in Court of Claims, except in limited circumstances when there is no alternative remedy]).
Accordingly, Claim No. 116017 is dismissed in its entirety.
All motions on which the Court may have reserved decision or which were not previously determined are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
September 4, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims