Opinion
# 2017-044-013 Claim No. 124067
10-11-2017
JOHN LOPEZ v. THE STATE OF NEW YORK
JOHN LOPEZ, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General
Synopsis
Claim for intentional misconduct, negligence, medical malpractice/negligence based upon collapse of weight bench and subsequent medical treatment dismissed after trial.
Case information
| UID: | 2017-044-013 |
| Claimant(s): | JOHN LOPEZ |
| Claimant short name: | LOPEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124067 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | JOHN LOPEZ, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 11, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover for personal injuries allegedly received when a weight bench collapsed beneath him and caused him to fall to the ground while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira). Claimant also asserts that he was denied adequate medical attention for his injuries. Defendant State of New York (defendant) answered and asserted several affirmative defenses. A trial in this matter was conducted by video conference on September 14, 2017, with claimant appearing at Green Haven Correctional Facility, defendant at Elmira, and the Court sitting in Binghamton, New York.
At trial, claimant testified that during the afternoon of August 21, 2013, he was using a weight bench in the Involuntary Protective Custody (IPC) yard when the bench collapsed, causing him to fall to the pavement with the broken wood beneath him and penetrating into his back. Claimant stated that he suffered excruciating pain in his back and neck as a result. Claimant said that he had previously complained about the exercise benches being in a deteriorated state. In his claim, he asserted that on August 14, 2013, he advised Correction Officer (CO) J. Blackman that the "[red] bench had a crack in the iron cast leg." He stated that Blackman indicated that he would put in a work order to have the leg welded. At trial, claimant testified that he and others had complained about the condition of the benches prior to his accident, but could not specify when those complaints had occurred.
Claim, ¶ 4.
Claimant testified that sometime during the night of his fall, he informed CO Blackman that he had pain in his back and neck due to the collapse of the weight bench. Claimant stated that Blackman was "in the bubble" playing cards, gambling and eating popcorn with other COs, and disregarded his complaint. In his claim, claimant asserted that the CO told him that he was leaving for the evening but would put in a sick call request for the morning.
All quotes herein are taken from the Court's notes of the proceedings unless otherwise indicated.
Claimant testified that from the time of his accident up to the date of trial he repeatedly complained of ongoing pain, but was given nothing but ibuprofen. He said that he was repeatedly advised that he would see a doctor, but that he did not actually see a doctor or have X rays taken until five months after the accident. However, claimant indicated in his claim that X rays were taken on September 20, 2013, about a month after the accident. When the Court directed claimant's attention to this assertion at trial, claimant suddenly recalled the X rays having been taken at that time.
Claim, ¶ 38.
Claimant further testified that he was eventually given methocarbamol and naproxen, but stated that neither of these medications resolved his back or neck pain. He said that Dr. Braselmann prescribed a back brace. Claimant also stated that prior to the accident he did not take any medications for a mental health condition, but since that time he has been prescribed Remeron (which he described as a sleep aid) and Buspar (which he called a "psych med").
On cross-examination, claimant was asked why he was using that particular weight bench if he knew it was defective. He responded that "it looked fine" when he started to use it, but then collapsed while he was working out on it. Claimant was asked why, in his grievance dated September 8, 2013 regarding the accident, he did not mention that he had made any complaints about the condition of the weight bench prior to the date of the accident. Claimant was unable to answer the question. When asked why he did not file any grievances about the condition of the bench prior to the accident, he responded that he might have, but did not have copies with him.
Defendant's Exhibit A.
Claimant was directed to information in his Ambulatory Health Record (AHR) which indicated that X rays were taken of his cervical and lumbar spine on September 20, 2013. The X rays indicated degenerative joint disease without any other abnormalities. The records further indicate that claimant was seen by Dr. Braselmann on September 17, 2013, at which time he was given a permit for a back brace. When asked, claimant indicated that at that time he weighed approximately 315 pounds, and currently weighs between 290 and 295 pounds. Claimant agreed with the notations in the AHR that he had been given Naprosyn, Robaxin and Tylenol for back pain.
Defendant's Exhibit B.
Id. at 6.
id. at 4.
Id. at 5.
Claimant had no comment regarding the AHR's notations that indicate he made no further complaints regarding back pain until October 27, 2014, despite attending sick call on a frequent basis. No complaints regarding back pain were made between October 27, 2014 and November 19, 2015.
id. at 11.
Id. at 36.
Claimant rested his case at the close of his testimony.
Defendant called CO Blackman, a DOCCS employee for 34 years, to testify. Blackman said he was familiar with claimant due to Blackman's role as a Protective Custody Recreation Officer. He recalled preparing a "to-from" memorandum regarding the incident as a response to the grievance filed by claimant. He said that he had not been aware of the incident until claimant filed his grievance. Blackman said that neither claimant nor anyone else had complained about the condition of the weight benches, nor had any benches broken prior to that incident. He said that if he had noticed any equipment in defective condition he would have had it taken out of service and requested that it be repaired. He also stated that if claimant had complained to him about any injury he would have ensured that claimant was seen by medical staff.
On cross-examination, claimant asked Blackman if he recalled claimant complaining to him either about the condition of the bench or about claimant's injury. Blackman said he had no recollection of any such complaints. Blackman reiterated that if there had been any complaints about the condition of the benches, he would have inspected them himself, taken them out of service if defective, and requested repair.
Defendant rested its case at the close of Blackman's testimony. The Court reserved decision.
In a post-trial submission permitted by the Court, claimant requests that defendant's Exhibits A and B be stricken from the record on the basis that claimant had made discovery demands for those documents and they had not been provided to him. In response, defendant submits a copy of its response to claimant, dated January 29, 2016, which indicated that defendant was in possession of documents responsive to claimant's demand, and advised that defendant would forward the documents upon receipt of appropriate copying charges. Defendant further advises that no payment or other response was submitted by claimant in reply. It is well-settled that defendant has the right to require a claimant to pay reasonable photocopying costs of documents demanded through the discovery process (Gittens v State of New York, 175 AD2d 530 [3d Dept 1991]; Wynn v State of New York, UID No. 2003-019-513 [Ct Cl, Lebous, J., Feb. 14, 2003]; see also Shell v State of New York, 307 AD2d 761 [4th Dept 2003], lv denied 1 NY3d 505 [2003]). A pro se inmate claimant is not entitled to any greater rights than those of a pro se non-incarcerated claimant who does not have funds available to carry out all phases of litigation, including discovery (Gittens, 175 AD2d at 530-531; Wynn, UID No. 2003-019-513 at 3). Further, pursuant to Civil Rights Law §§ 79 (3) and 79-a (3), defendant is not "liable for any expense of, or related to, inmate litigation and shall not be required to perform any services related thereto, particularly where, as here, poor person status has not been granted" (Gittens, 175 AD2d at 530-531). Claimant's motion to strike defendant's exhibits is denied.
Claimant entitled his submission "Notice of Motion for Objections and to Strike Defendant's Submission of Evidence." However, the Court will refer to it as Claimant's Post-Trial Submission.
Claimant enclosed a copy of those demands, which were dated January 5, 2016, with his submission.
Claimant further complains about the fact that he was not assigned an attorney. There is no constitutional or statutory authority for the assignment or compensation of counsel under these circumstances (Matter of Smiley, 36 NY2d 433, 437-438 [1975]). Rather, the assignment of counsel in civil matters is a matter of judicial discretion and generally is denied except in cases involving grievous forfeiture or the loss of a fundamental right (Hines v State of New York, UID No. 2005-028-534 [Ct Cl, Sise, P.J., June 21, 2005]). The allegations made in this claim are for personal injuries caused by defendant's alleged negligence, medical malpractice and/or medical negligence. Claimant's allegations are clearly of the nature that would typically be handled by an attorney on a contingent fee basis. The Court finds that this claim does not warrant the exercise of its discretion to assign counsel (see Smiley, 36 NY2d at 438).
Claimant also complains that he was not permitted to call witnesses in support of his claim, and further complains that the Court should have considered signed affidavits made by those witnesses regarding the allegations. At trial, the Court advised claimant that if he had desired to call witnesses, he was required to submit a motion for a subpoena to the Court, which if granted, would have required him to pay witness and travel fees. A pro se inmate claimant is not a person authorized to issue subpoenas and must formally move for a court order allowing the issuance of a subpoena (CPLR 2302). In a motion for a subpoena ad testificandum, claimant should identify his proposed witnesses and set forth the substance of their purported testimony to satisfy the burden of establishing that testimony from each witness "is material and necessary to the prosecution of his claim" (Moley v State of New York, UID No. 2006-037-011 [Ct Cl, Moriarty III, J., May 25, 2006] at 4; see Smith v State of New York, UID No. 2005-019-544 [Ct Cl, Lebous, J., June 24, 2005]). Claimant did not move for issuance of subpoenas prior to trial.
When claimant requested at trial that the affidavits of fellow inmates who witnessed his accident be admitted into evidence, defendant objected on the ground that such documents are inadmissible as hearsay. The Court sustained defendant's objection. The right to cross-examination is fundamental to an adversarial trial system, and out-of-court statements introduced to prove the truth of the matter asserted are hearsay and inadmissible unless they fall within an exception to the hearsay rule (see Nucci v Proper, 95 NY2d 597 [2001]). Claimant has made no showing that the affidavits fell within any such exception, nor does the Court find any indication that they do so. Claimant's post-trial renewal of his request that the affidavits be admitted is accordingly denied.
The Court notes that claimant submitted copies of the affidavits with his post-trial submission. Both affidavits simply state that they observed claimant falling when a weight bench broke underneath him. Neither indicate in any way that defendant had any notice, constructive or otherwise, of any defective condition. Accordingly, in light of the holding herein, the affidavits would not have changed the Court's decision if they had been admitted.
Claimant made a further objection "to not being provided with an independent source a liable [sic] source from a [sic] out side [sic] hospital regarding Claimant taking X-rays for his back/neck injuries of Claimant experiencing constant sharp throbbing stabbing pain. Claimant medical report clearly states by Dr. Peter Brasselman Claimant has a Sciatia [sic] Disc Problem in Claimant back." While the nature of this "objection" is unclear to the Court, to the extent that it requests that claimant be treated at a medical facility outside the prison system, it is denied. "As a court of limited jurisdiction, the Court of Claims has no jurisdiction to grant strictly equitable relief" (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 [2005]; see Psaty v Duryea, 306 NY 413, 416 [1954]; Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [3d Dept 1997]). Because the equitable relief requested in this case (an injunction requiring DOCCS to send claimant for treatment at a medical facility outside the prison system) is not incidental to the claim for money damages allegedly caused by defendant's medical malpractice and/or medical negligence, this Court has no jurisdiction to issue an injunction (see Psaty, 306 NY at 416; see e.g. Szymaszek v State of New York, UID No. 2012-040-035 [Ct Cl, McCarthy, J., May 4, 2012]).
Claimant's Post-Trial Submission, ¶ 12.
Claimant asserted causes of action in the claim for negligence, medical negligence, intentional staff misconduct, conscious pain and suffering, future pain and suffering and mental anguish. Claimant alleged that defendant was negligent by failing to repair and/or replace the corroded exercise equipment. He specifically states it was the duty of defendant's employees to make sure the equipment was safe.
It is well-established that the State has a duty to maintain its facilities in a reasonably safe condition, and with respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506, 513 [1984]; Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233, 241 [1976]). This duty of reasonable care also is applicable to the recreational facilities in its prisons (Shuler v State of New York, UID No. 2000-013-510 [Ct Cl, Patti, J., Sept. 5, 2000]). However, the State is not an insurer of the safety of its inmates, and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850 [1985]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]).
To prevail on his claim, claimant must prove that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]). In order to constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (Gordon, 67 NY2d at 837).
The collapse of the weight bench with claimant on top of it certainly seems to constitute a dangerous condition. Claimant's weight was not so extreme that it would excuse the collapse of the bench. However, claimant introduced no evidence to suggest that defendant created the condition. The issue then is whether defendant had actual or constructive notice that the dangerous condition existed. Claimant alleged that he complained to Blackman and others about the deteriorated condition of the bench on prior occasions. Blackman asserted that no such complaints were made to him. Upon observing claimant during his testimony, and listening to it in contrast to the allegations contained in the claim, the Court concludes that claimant's testimony regarding any notification to defendant's employees simply is not credible. Claimant repeatedly exaggerated his contentions, and denied information contained in his own claim. The grievance he himself filed regarding the accident contained no allegation that he had previously reported any type of dangerous or deteriorated condition. In addition, claimant himself testified that he used the bench that day because "it looked fine." Accordingly the Court finds that defendant had no prior actual or constructive notice about any dangerous condition involving the bench, and claimant's cause of action for negligence in the maintenance of the weight benches is therefore dismissed.
Given the lack of credibility of claimant's testimony, his cause of action for intentional staff misconduct based upon CO Blackman's alleged failure to report the purportedly dangerous condition of the weight bench is also dismissed.
Claimant also asserts that even though he wrote several letters of complaint about the lack of medical treatment, defendant failed to respond or provide adequate treatment. He states that although he was examined by nurses, he did not see a doctor until a month after his injury.
"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]; see also Auger v State of New York, 263 AD2d 929 [3d Dept 1999]). In a medical malpractice case, the claimant has the burden of proving that the medical provider "deviated from accepted medical practice and that the alleged deviation proximately caused his injuries" (Parker v State of New York, 242 AD2d 785, 786 [3d Dept 1997]; see Auger, 263 AD2d at 931; Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804 [1976]). In other words, "[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" (Cabness v State of New York, UID No. 2010-030-043 [Ct Cl, Scuccimarra, J., Dec. 6, 2010] at 10).
There is a subtle distinction between medical negligence and medical malpractice. The Court of Appeals has recognized that although a medical provider "in a general sense is always furnishing medical care to patients . . . not every act of negligence toward a patient would be medical malpractice" (Bleiler v Bodnar, 65 NY2d 65, 73 [1985]. When the allegedly wrongful conduct "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician," the cause of action is for medical malpractice rather than negligence (id. at 72; see Scott v Uljanov, 74 NY2d 673 [1989]). "By contrast, when 'the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [provider's] failure in fulfilling a different duty,' the claim sounds in negligence" (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] quoting Bleiler, 65 NY2d at 73). However, "[u]nder either theory, '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is . . . required' to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to claimant's injuries " (Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see also Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005]).
Further, it is the State's duty to render medical care "without undue delay" and, therefore, whenever "delays in diagnosis and/or treatment [are] a proximate or aggravating cause of [a] claimed injury," the State may be liable (Marchione v State of New York, 194 AD2d 851, 855 [3d Dept 1993]). In order to recover for damages arising from a delay, a claimant must prove that the delay in diagnosis or treatment was a proximate cause of the injuries. In other words, a claimant must provide evidence "that there was a 'substantial possibility' that the [complained of loss] was caused by the delay and that the State's negligence deprived claimant of an appreciable chance of avoiding the loss suffered" (Brown v State of New York, 192 AD2d 936, 938 [3d Dept 1993], lv denied 82 NY2d 654 [1993]; see Kimball v Scors, 59 AD2d 984, 985 [3d Dept 1977], lv denied 43 NY2d 648 [1978]; see also Kennedy v Peninsula Hosp. Ctr., 135 AD2d 788, 792 [2d Dept 1987]; Mortensen v Memorial Hosp., 105 AD2d 151, 157-158 [1st Dept 1984]).
In order to establish that defendant's employees committed medical malpractice, claimant was required to provide expert medical testimony to establish that 1) he should have been examined by a physician (before one month had elapsed); or 2) that the care rendered by the nurses did not satisfy the appropriate standard of care. In order to establish that the one-day delay in his treatment by a nurse and/or the one month delay in his examination by a physician caused further damages, he was also required to provide expert testimony. Claimant did not introduce any expert medical testimony. Moreover, the records in claimant's AHR indicate that his back pain was due to degenerative joint disease, rather than being proximately related to the collapse of the weight bench. Claimant's causes of action for medical malpractice and medical negligence are accordingly dismissed.
In conclusion, claimant has failed to set forth a prima facie case for causes of action for intentional staff misconduct, negligence, medical malpractice and medical negligence, and Claim No. 124067 is hereby dismissed. Any motions not heretofore determined or upon which reservation was made are hereby denied.
Let judgment be entered accordingly.
October 11, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims