Opinion
# 2016-015-606 Claim No. 121287
03-17-2016
E. RAYMOND WHALEN v. THE STATE OF NEW YORK
E. Raymond Whalen, Pro Se Honorable Eric T. Schneiderman, Attorney General By: G. Lawrence Dillon, Esquire Assistant Attorney General
Synopsis
At trial claimant failed to establish through the submission of medical evidence either medical malpractice or medical negligence.
Case information
| UID: | 2016-015-606 |
| Claimant(s): | E. RAYMOND WHALEN |
| Claimant short name: | WHALEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121287 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | E. Raymond Whalen, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: G. Lawrence Dillon, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 17, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In his claim filed on May 9, 2012, the claimant asserts causes of action for medical negligence and malpractice arising from allegedly inadequate medical care following an injury sustained during an assault by another inmate at the Mid-State Correctional Facility on June 11, 2011. The trial of this matter occurred in Utica, New York on January 26, 2016.
At trial Mr. Whalen testified that he was involved in an altercation with another inmate on the morning of June 11, 2011. He was taken to the infirmary following the incident where he was evaluated. According to Mr. Whalen, at that time he had a cut on his jaw between his teeth. Infirmary staff inquired whether he was "alright" to which he replied in the affirmative. He was then informed that his injuries did not appear serious and that he should return if he experienced any difficulties. Mr. Whalen returned to his cell and two hours later his "jaw broke apart, the gum did". At that time he requested of a correction officer that he be permitted to go to the infirmary. The correction officer contacted the infirmary who instructed that the claimant should put in for sick call which, because it was Saturday, would not occur until Monday. According to the claimant his mouth was bleeding heavily at the time of his request. On Sunday the claimant attended a mandatory urine test at which time he demonstrated the separation which had occurred in his jaw to correction officers who were present. He was instructed by the correction officers that he should request sick call to address his injuries. The claimant attended sick call on Monday, June 13, 2011, where he was evaluated by a nurse and sent to an outside hospital. The claimant underwent surgery in which a plate and four screws were inserted and his jaw was wired shut. The metal plate and screws remain in the claimant's jaw.
All quotations are from the trial recording. --------
Claimant testified that when he was first taken to the infirmary he suffered mild bleeding, a laceration in his gum and a loose tooth. He was instructed to return to his housing unit and to contact the infirmary should any complications arise. Within two hours of his return to his housing area his jaw had become separated such that the left side could be manipulated independent of his teeth. He asserted at trial that it was obvious at that time that his jaw was broken and he began taking aspirin to address the pain, which he testified continued until his injuries were addressed by the surgical procedure performed at the outside hospital. In fact, claimant contends that he still experiences pain in his jaw and that nerve damage which he sustained as a result of his injury and the alleged delay in treatment has caused him to drool and slur his words.
On cross-examination the claimant acknowledged that he is not a medical expert but argued that it was obvious to anyone that his jaw was broken and that medical treatment was required. The defendant then moved for a directed verdict on the basis of claimant's failure to provide expert medical proof in support of his medical malpractice cause of action.
To the extent the claim asserts a cause of action for medical negligence, defendant contends that the actions undertaken by medical personnel comply with prevailing Department of Corrections' protocols.
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]). 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]). Where 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 [2011], lv 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]; Abascal v State of New York, 93 AD3d 1216 [4th Dept 2012], lv denied 19 NY3d 805 [2012]; Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]). Where only nondiscretionary medical protocols are alleged to have been breached, a cause of action for ministerial neglect is stated (Kagan, 221 AD2d at 10-11). Under either theory, liability does not attach absent competent medical evidence that the negligence was a proximate cause of the claimant's ensuing medical problems (Tolliver v State of New York, 133 AD3d 990 [3d Dept 2015], lv denied ___NY3d ___ [2016]; Knight v State of New York, 127 AD3d 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 [2015]; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Trottie, 39 AD3d 1094; Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]).
Here, claimant failed to submit medical evidence establishing a deviation from the applicable standard of medical care and no evidence was presented regarding violation of a nondiscretionary medical protocol. The lack of medical evidence or evidence of a violation of a nondiscretionary protocol requires dismissal of the claim as a matter of law.
Accordingly, the claim is dismissed and the Chief Clerk is directed to enter judgment accordingly.
March 17, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims