Opinion
2012-03-16
Isidro ABASCAL, Claimant–Appellant, v. STATE of New York, Defendant–Respondent. (Claim No. 113160.)
Isidro Abascal, Claimant–Appellant Pro se. Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of Counsel), for Defendant–Respondent.
Isidro Abascal, Claimant–Appellant Pro se. Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of Counsel), for Defendant–Respondent.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Claimant commenced this action seeking damages for injuries he allegedly sustained as a result of a prostate examination performed at the correctional facility where he was incarcerated. Contrary to the contention of claimant, the Court of Claims properly dismissed his claim based on his failure to present expert medical evidence. Claimant, “like any medical malpractice plaintiff, [alleges that] he was injured because a doctor failed to perform competently a procedure requiring the doctor's specialized skill” ( Bazakos v. Lewis, 12 N.Y.3d 631, 634, 883 N.Y.S.2d 785, 911 N.E.2d 847; see generally Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 787–788, 650 N.Y.S.2d 629, 673 N.E.2d 914; Toepp v. Myers Community Hosp., 280 A.D.2d 921, 721 N.Y.S.2d 177). “Because the claim ‘substantially related to medical diagnosis and treatment, the action it gives rise to is by definition one for medical malpractice rather than for simple negligence’ ” ( McDonald v. State of New York, 13 A.D.3d 1199, 1200, 787 N.Y.S.2d 597; see Weiner, 88 N.Y.2d at 788, 650 N.Y.S.2d 629, 673 N.E.2d 914). Further, claimant's allegation that defendant deviated from an accepted standard of care in performing the prostate examination raises medical issues that are not “within the ordinary experience and knowledge of laypersons” ( Mosberg v. Elahi, 80 N.Y.2d 941, 942, 590 N.Y.S.2d 866, 605 N.E.2d 353; see Wood v. State of New York, 45 A.D.3d 1198, 846 N.Y.S.2d 717; Tatta v. State of New York, 19 A.D.3d 817, 818, 797 N.Y.S.2d 588, lv. denied 5 N.Y.3d 712, 806 N.Y.S.2d 162, 840 N.E.2d 131). Thus, contrary to claimant's contention, expert medical evidence was required ( see Mosberg, 80 N.Y.2d at 942, 590 N.Y.S.2d 866, 605 N.E.2d 353; Wood, 45 A.D.3d 1198, 846 N.Y.S.2d 717; McDonald, 13 A.D.3d at 1200, 787 N.Y.S.2d 597).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.