Submitted - March 12, 2018
Whitfield, Brooklyn, NY, appellant pro se.
Barbara D. Underwood, Attorney General, New York, NY (Judith
N. Vale and David Lawrence III of counsel), for respondent.
E. CHAMBERS, J.P. SHERI S. ROMAN BETSY BARROS LINDA
DECISION & ORDER
claim, inter alia, to recover damages for medical
malpractice, the claimant appeals from a judgment of the
Court of Claims (Thomas H. Scuccimarra, J.), dated March 18,
2016. The judgment, upon a decision of the same court dated
January 28, 2016, made after a trial, dismissed the claim.
that the judgment is affirmed, without costs or
claimant alleges that the defendant's agents and
employees failed to timely diagnose and treat the
claimant's urinary tract infection (hereinafter UTI)
while he was in the custody of the Department of Corrections
and Community Supervision at various correctional facilities
from 1988 to 2010, and then fraudulently concealed his
medical condition and their medical malpractice. The claimant
filed a notice of intention to file a claim in September
2008, and thereafter filed this claim in August 2010
alleging, inter alia, medical malpractice, ordinary
negligence, and fraud. After a trial, the Court of Claims
found that the claimant failed to establish by a
preponderance of the evidence that the defendant committed
medical malpractice or ordinary negligence, or any other
basis for liability. The court also found that so much of the
claim as was based on events occurring prior to 90 days
before the claim was served on the defendant was time-barred.
A judgment was entered dismissing the claim, and the claimant
Court of Claims erred in finding that so much of the claim as
was based on events occurring prior to 90 days before the
claim was served was time-barred on the ground of the
claimant's noncompliance with Court of Claims Act §
10(3), since the defendant's failure to plead that
defense or to move to dismiss the claim upon that ground
effected a waiver of that jurisdictional defect (see
Court of Claims Act § 11[c]; Scott v. State of New
York, 204 A.D.2d 424, 425; Pelnick v. State of New
York, 171 A.D.2d 734, 735; see also Bowen v. Nassau
County, 135 A.D.3d 800, 800-801; Paladino v. Time
Warner Cable of N.Y. City, 16 A.D.3d 646, 647).
Nevertheless, the claim was properly dismissed because the
claimant failed to establish that the defendant committed
medical malpractice, ordinary negligence, or fraud.
establish a prima facie case of medical malpractice, a
plaintiff must set forth (1) the standard of care in the
locality where the treatment occurred, (2) that the defendant
breached that standard of care, and (3) that the breach was
the proximate cause of his or her injuries''
(Elkin v. Goodman, 24 A.D.3d 717, 720; see
Meiselman v. Crown Hgts. Hosp., 285 NY 389). Further,
where, as here, the subject matter (UTIs) and treatment
thereof are "not within the ordinary experience and
knowledge of laypersons" (Estate of Ward v.
Hoffman, 139 A.D.2d 691, 693), the claimant must
establish a prima facie case of medical malpractice through
expert medical opinion (see McDermott v. Manhattan Eye,
Ear & Throat Hosp., 15 N.Y.2d 20, 24).
fair interpretation of the evidence supports the conclusion
of the Court of Claims that the claimant failed to establish
any departure from accepted medical practice or that any
alleged departure was a proximate cause of his injuries. The
evidence adduced at trial established that the claimant's
laboratory tests in 1988, 2001, and 2006 showed bacteria in
his urine, and that he was not diagnosed with a UTI until
2008. However, there was no expert testimony that the failure
to diagnosis a UTI based solely upon a laboratory report
showing bacteria in the urine was a deviation from accepted
standards of care, or that the failure to diagnose a UTI
until 2008 was a proximate cause of any of the medical
conditions or ailments that the claimant allegedly sustained
as a result of the allegedly delayed diagnosis. The evidence
did not establish that any ordinary negligence on the part of
the defendant's employees in failing to communicate the
results of the claimant's laboratory reports to him was a
proximate cause of his injury (see Mosezhnik v.
Berenstein, 33 A.D.3d 895, 897; Rodriguez v.
Montefiore Med. Ctr., 28 A.D.3d 357, 357-358).
the claimant failed to prove that he sustained any damages
due to the alleged fraudulent concealment of medical
malpractice by the defendant's employees that were
separate and distinct from the damages caused by the alleged
malpractice (see Rochester Fund Muns. v. Amsterdam Mun.
Leasing Corp., 296 A.D.2d 785, 788; Abraham v.
Kosinski, 251 A.D.2d 967, 968; Ross v. Community
Gen. Hosp. of Sullivan County, 150 A.D.2d 838, 842).
claimant's remaining contention is without merit.
CHAMBERS, JP, ROMAN, BARROS and ...