by Michael Rigby
In two separate cases, New York courts of claims awarded $3,500 to prisoners pursuing pro se personal injury claims against the state. As these cases illustrate, expert testimony is not always necessary to prevail on injury claims, but failure to provide such testimony may affect damage awards.
Adrian Lopez, a prisoner reliant on a cane and leg brace as a result of a gunshot wound to his left leg, claimed that he fell on August 8, 2002, when his uninjured leg became entangled in the cell bars while he was descending from his top bunk at the Attica Correctional Facility.
Because of his prior injury, Lopez had been issued a bottom bunk pass at two other state prisons. Although the pass was initially honored upon his arrival at Attica, Lopez was later moved to a top bunk pending medical review.
In his lawsuit, Lopez claimed that the fall worsened knee, hip and back pain associated with his pre-existing injury and bent fixation screws in his left leg.
The court ruled on November 26, 2003, that because the prison had confirmed "the existence of a medical condition [requiring] placement in a bottom bunk," assigning Lopez to a top bunk constituted negligence.
But Lopez's failure to provide expert testimony proved detrimental. The court held that although expert medical testimony was not necessary to prove claims of pain, without it the court could not consider any award for the harm done to his fixation screws, or the surgery to repair them.
Accordingly, Lopez was awarded $3,500 for past pain and suffering. See: Lopez v. State of New York, Court of Claims, Buffalo, Case No. 106606. Albany.
No Physical Therapy or Boots
William Astacio, a prisoner requiring special leg braces and boots because he has muscular dystrophy, claimed he lost muscle strength and stamina when his physical therapy was postponed for seven months.
While imprisoned at the Clinton Correctional Facility, Astacio began to experience pain and numbness in his feet and sought medical attention. On September 25, 2000, a prison doctor referred Astacio to a neurologist and, after noticing that his boots appeared too tight, to an orthotics specialist.
On October 18, 2000, a neurologist ordered Astacio's braces refitted and also prescribed physical therapy. In November 2000 an orthotics specialist determined that Astacio's leg braces were satisfactory. The specialist concluded, however, that Astacio's too-tight boots were causing numbness in his feet and ordered the boots replaced.
But Astacio was not measured for new boot until April 4, 2001, and did not receive them until May 3, 2001. Astacio's physical therapy did not begin until May 30, 2001, because without the bigger boots, Astacio claimed, he was physically incapable of undergoing physical therapy.
The state was unable to reasonably explain the delay from the time the orthotics specialist prescribed new boots for Astacio and the time he was actually measured for them. Thus, the court ruled on December 31, 2003, that the state was liable for at least five months of delayed treatment.
However, like Lopez, Astacio's failure to provide expert medical testimony may have adversely affected his damage award. The court declined to award Astacio any damages for future pain and suffering because he failed to provide expert medical testimony to establish the permanency or residual effects of his injuries. The court also noted that while expert medical testimony is not always required to establish a delay in treatment, it is nearly impossible to establish a prima facie case of medical malpractice without it.
Astacio was awarded $3,500 for past pain and suffering. Both Lopez and Astacio were entitled to recover their filing fees pursuant to Court of Claims Act 11-a(2). See: Astacio v. State of New York, Court of Claims, Albany, Case No. 104577.
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Related legal cases
Lopez v. State of New York
|Cite||Ct of Claims, Buffalo, Case No. 106606 Albany|
|Level||Court of Claims|
Astacio v. State of New York
|Cite||Ct of Claims, Albany, Case No 104577|
|Level||Court of Claims|