Manuel de Jesus alleges in his claim that the Defendant's agents failed to provide him with adequate and timely medical care, and wrongfully confined him as a result. Specifically he states that medical personnel failed to timely administer appropriate tests to determine if he had tuberculosis, while he was in the custody of the New York State Department of Correctional Services [DOCS] in various institutions. Trial of the matter was held at Downstate Correctional Facility [hereafter Downstate] on December 8, 2006.

Claimant testified ^[FN1] that when he arrived at reception at Downstate in either January or February of 2002 he went through the medical screening process. Several tests were performed, including one for tuberculosis [hereafter TB]. He was told that his test was positive for TB, and then was sent back to his cell for three (3) days. When he returned, it was confirmed again that he was positive for TB and he was prescribed medication. He did not remember the exact [*2]combination of pills he "drank"^[FN2], but he recalled that they included iodine and vitamins C and D. When he first took the pills, he said he felt nauseous and dizzy, and left his cell and "sat down for a while."

When he next saw medical personnel, he complained that there was something wrong with the medication because it was making him sick. He told them he was losing his eyesight, he was getting dizzy and had vomited in his cell and fallen twice. When he saw the doctor again, Claimant told him that the medication was hurting him, and refused to take the medicine. The "doctor told him if you don't take these pills we will lock you up for one (1) year.' " Claimant took the pills, and continued to experience the same problems. He got dizzy, nauseous and "fell to the floor, vomiting."

Sometime thereafter, he "signed a paper saying [he] was not going to take the medication any more," and asked that they "take another test or do something - take [his] blood or do x-rays - so that [he] would not have to take this medication that was so clearly making [him] ill."

Mr. de Jesus said that the doctor refused to do such testing.

Consequently, Claimant said "ok, lock me up, because I can't take these pills anymore." Claimant indicated that he was then "transferred to Upstate for a TB hold' keeplock." He testified that he was supposed to go to an isolation area because of his illness, but instead was placed in a regular cell, and was told that as long as he did not take the pills he would remain in keeplock. Although he spoke to a counselor to obtain help, they would not help him, he said. Claimant remained at Upstate "for about one month without any medication, locked up."

Thereafter, he was transferred to Clinton Correctional Facility. He said that he thought he was going to go to a hospital for a checkup or other tests, but instead went to a "dungeon like place where only sick people were" at Clinton. Claimant testified: "What kind of hospital was this where there was no water or windows?" He was there for approximately eleven (11) months, without anyone coming to give him any tests - such as blood tests - or x-rays. Finally, a doctor came and took blood tests and x-rays, and Claimant "found out that [he] had no problems", and "should have been let loose earlier." Claimant said that he continued to complain of pain in the right side of his stomach, but medical personnel told him there was nothing wrong with him. Claimant asserted he has pain in his stomach to this day and has lost 50% of his vision.

While he was keeplocked, he indicated that he "lost his appeal and privileges and was discriminated against, and suffered mental anguish because visits with his family were lost" because of his status. For example, his mother came to visit him twice but was told she could not because of the TB lock up. He seeks damages in the amount of Five Million dollars.

On cross-examination, Mr. de Jesus admitted that during the ten (10) to eleven (11) months he was in keeplock he continued to refuse to take prescribed medication for TB.

The Court reviewed a series of documents submitted by Claimant, that mostly contained copies of correspondence and prior motion practice before this Court. [Exhibit 1]. There were no medical records submitted, nor any records concerning his alleged assignment to keeplock or in a special housing unit as a medical hold. Although in his written claim Mr. de Jesus indicated that he filed administrative grievances no documentation of same was offered.

The Court also took judicial notice of DOCS Directive 1.18 concerning Tuberculosis [*3]protocols for incarcerated individuals. Notably, the regulations provide that an inmate who refuses to take prescribed TB medication can be placed in keeplock on that basis alone.

No other witnesses testified and no other evidence was submitted.

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).

In a medical malpractice claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. 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. The " claimant must [demonstrate] *** that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his . . . injuries' (Parker v State of New York , 242 AD2d 785, 786)." Auger v State of New York, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept 1976), lv denied 40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).

If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State's employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony. Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for ministerial neglect if its employees fail to comply with an institution's own administrative procedures and protocols for dispensing medical care to inmates. Kagan v State of New York, 221 AD2d 7,10 (2d Dept 1996).

In this case, only the testimony of the Claimant has been presented in support of any claim of malpractice. No competent medical evidence was presented, through a treating physician or an expert witness whose opinion was based upon the available medical records, to support the allegation of medical malpractice. There is no medical evidence on any medical issue and thus no proof that accepted standards of care were not met. Indeed, no medical records of any type were submitted, or any indication that Claimant was ever tested, treated or placed on medical hold as an inmate diagnosed with tuberculosis who refused medication. Accordingly, any claim of medical malpractice must be dismissed.

Additionally, from this record there is no indication that the actions of medical caregivers amounted to simple negligence or ministerial neglect. Coursen v New York Hospital-Cornell Med. Center, supra; Kagan v State of New York, supra. The regulations concerning procedures for taking care of inmates afflicted with tuberculosis and other contagious diseases are clearly of an ameliorative nature, designed to assure the health of the inmates tested and treated as well as fellow inmates. When such dangerous communicable diseases are involved, treatment and isolation must be mandatory. Whatever side effect may have been suffered - assuming these were even related to any alleged treatment for TB - is far outweighed by the beneficial effect of assuring the health of the prison population as a whole.

There has been no showing of any harm related to determinations made by medical [*4]caregivers. Therefore, to the extent the claim can be read to assert such theories, any cause of action for negligence or ministerial neglect is also dismissed.

To establish a prima facie case of wrongful confinement, a "species" of the tort of false imprisonment, [Gittens v State of New York, 132 Misc 2d 399, 407 (Ct Claims 1986)], a claimant must show ". . . (1) the defendant intended to confine him, (2) the . . . [claimant] was conscious of the confinement, (3) the . . . [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged . . . " Broughton v State of New York, 37 NY2d 451, 456 (1975).

From the limited facts presented it would appear that Defendant's agents acted within the bounds of DOCS rules and regulations. While certainly, there may be occasions where an inmate may recover on a theory of wrongful confinement if medical keeplock is imposed in contravention of prison regulations [see e.g. Pacheco v State of New York, UID #2002-032-501, Claim No. 104032 (Hard, J., December 2, 2002)], Claimant has not established that he was improperly diagnosed or treated, or that he was wrongfully confined based upon the evidence presented here. By his own testimony, he appears to have been placed in medical keeplock based upon his refusal to take prescribed medication for an infectious disease. See Rossi v Portuondo, 277 AD2d 526 (3d Dept 2000), lv denied 96 NY2d 706 (2001); Medina v State of New York, UID #2002-031-501, Claim No. 98788 (Minarik, J., January 8, 2002).

Claimant has failed to establish his claim by a preponderance of the credible evidence and therefore Claim Number 108003 is dismissed in its entirety.

Let Judgment be entered accordingly.

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