Opinion
# 2015-018-612 Claim No. 117084
03-02-2015
KIRK L. STEVENSON v. STATE OF NEW YORK
KIRK L. STEVENSON Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General
Synopsis
Claimant failed to establish he suffered injuries due to Defendant's negligence.
Case information
| UID: | 2015-018-612 |
| Claimant(s): | KIRK L. STEVENSON |
| Claimant short name: | STEVENSON |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117084 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | KIRK L. STEVENSON Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 2, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant served a notice of intention on May 8, 2008, and filed a claim on July 6, 2009, and amended claim filed on August 26, 2010, seeking damages for injuries he suffered when he fell from the top bunk at Gouverneur Correctional Facility on April 6, 2008. Claimant asserts that the State is liable for its medical negligence in assigning him to a top bunk, when he had a medical order from Bare Hill Correctional Facility for placement in a bottom bunk. Claimant also asserts that he was not provided with proper medical care after he fell from the top bunk and suffered injuries to his head, back, left ankle and left hand. Defendant interposed an answer which contained one affirmative defense - failure to state a cause of action. A trial was held on January 14, 2015.
Claimant testified that he was in the special housing unit (SHU) at Gouverneur Correctional Facility (Gouverneur), when he was told that he was going to be moved to another cell on level 2 or 3. He packed his belongings as directed and was moved to another cell and assigned to the top bunk. Claimant advised the officer who moved him that he was a "medical bottom bunk." The officer said he would check with the medical staff. A nurse came to see Claimant and told him that she had checked his records, there was nothing in his medical records that required him to have a lower bunk, and he did not meet the Department of Corrections and Community Supervision (DOCCS) criteria for a lower bunk assignment. Claimant testified that he told the nurse that he had been medically assigned a lower bunk for a long time.
On April 6, 2008, Claimant fell out of his top bunk while he was sleeping and suffered injuries. He was taken to an outside hospital for evaluation. He testified he injured his lower back, re-injured his ankle, which he had injured previously in 2003, and he slightly injured his right hand. He was returned to the facility with directions for ice packs and pain medication. Claimant testified that, at first, all he received from the facility infirmary was pain medication. He continued to complain about the pain in his back, ankle, and at the base of his skull, and he was given exercises to do. He testified he still uses a back brace and takes pain medication for his back.
The Court accepted Claimant's exhibits which were his ambulatory health record from October 19, 2001 until April 15, 2008, and a copy of a Bare Hill Correctional Facility Medical Excuse dated January 9, 2008.
Exhibit 1.
Exhibit 2.
On cross-examination, Claimant agreed that in December 2007, prior to his arrival in Gouverneur, there was a reference to a medical necessity for a bottom bunk perhaps from Bare Hill Correctional Facility. Claimant was transferred into the SHU at Gouverneur on February 19, 2008, and seen by medical staff who he advised at that time that he needed a bottom bunk. The medical staff at Gouverneur did not issue a permit for a medical bottom bunk.
The State has the duty to ensure that inmates are housed in an environment that adequately provides for their physical and mental well being (see 9 NYCRR 7602.1; 7651.1; Matter of Farace v State of New York, 176 AD2d 1228 [4th Dept 1991]). The State also has the duty to provide its inmates with reasonable and adequate medical care and treatment (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]). A claim for medical malpractice is made when the substance of the allegations of wrongdoing involve the failure to properly provide adequate medical diagnosis, care and treatment in accordance with the applicable standard of care (see Hatzfeld v State of New York, 104 AD3d 1165, 1166-1167 [4th Dept 2013]; Parker v State of New York, 242 AD2d 785 [3d Dept 1997]). A claim for medical malpractice requires expert testimony to establish how the medical care provided departed from the acceptable standard of care (see Mosberg v Elahi, 80 NY2d 941 [1992]; Macey v Hassam, 97 AD2d 919 [3d Dept 1983]).
Defendant argued at trial that this claim must fail, because Claimant did not present any expert testimony regarding how the treatment he received deviated from good and acceptable medical care. To the extent Claimant seeks damages for the State's failure to properly diagnose and treat his injuries after he fell from the top bunk on April 6, 2008, Defendant's motion to dismiss must be granted. The proper care and treatment for the injuries to Claimant's back, ankle and hand are not matters within the knowledge of the Court, but instead require specialized medical expertise in order to permit the Court to determine whether there was a deviation from the standard of care. Since no expert testimony was provided, Claimant did not establish medical malpractice, or the extent or permanency of his injuries.
However, Claimant's assertion that the nurse failed to follow the Medical Excuse form from Bare Hill Correctional Facility directing a bottom bunk placement from January 9, 2008 until January 9, 2009, does not involve medical treatment or diagnosis (see Kagan v State of New York, 221 AD2d 7 [2d Dept 1996]; Matter of Farace, 176 AD2d at 1228; Gordon v Harbor Hosp., Inc., 275 AD 1047 [2d Dept 1949]). Rather the medical determination was made on January 9, 2008 when Claimant was assigned to the bottom bunk for one year, and there is no indication that this "Medical Excuse" was not applicable to Gouverneur. No witness from the State was produced to explain the effect of this outstanding "Medical Excuse" after a transfer to another facility within DOCCS. Under these circumstances, the Court finds that the failure to abide by the existing medical direction involves ordinary negligence, which resulted in the reasonably foreseeable consequence that Claimant would fall (see Sumpter v State of New York, UID No. 2008-030-024 [Ct Cl, Scuccimarra, J., Oct. 3, 2008]; Lopez v State of New York, UID No. 2003-034-015 [Ct Cl, Hudson, J., Nov. 26, 2003]). In fact, Claimant had fallen out of a top bunk on at least two prior occasions while in the custody of DOCCS.
It is also Claimant's burden to establish that he suffered injuries as a result of Defendant's negligence (see Lowe v State of New York, 35 AD3d 1281, 1282 [4th Dept 2006]; Kagan v State of New York, 221 AD2d 7, 11 [2d Dept 1996]). Although Claimant testified credibly that he suffered pain and discomfort in his lower back, with pain shooting up and down his leg after his fall, he did not establish the full extent of his injuries. Medical testimony was needed to establish the causal connection between Claimant's current medical condition and the duration and severity of the injuries and pain from his fall. Nor did Claimant elaborate on the pain he felt, how it impacted his daily life or its duration. The medical records in evidence also do not support a finding of significant pain or limitations right after his fall. Nonetheless, Claimant's testimony is sufficient to establish he suffered some pain after his fall (see Vincent-Wilday, Inc., v Strait, 273 App Div 1054, 1055 [4th Dept 1948], but see Maimone v Dry Dock, E. Broadway & Battery R. R. Co., 58 AD 383, 387 [1st Dept 1901], and Webb v Union Ry. Co., 44 App Div 413 [1st Dept 1899] [plaintiffs' testimony of continued pain not sufficient to establish permanency or award for future pain]). Accordingly, the Court awards Claimant for past pain and suffering the sum of $2,500. To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act section 11-a (2).
See Exhibit 1, entries for April 8, 2008 through April 15, 2008.
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LET JUDGMENT BE ENTERED ACCORDINGLY.
March 2, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims