KELLY v. STATE 88206 (1999)

Claimant sustained a serious knee injury while playing basketball at Groveland Correctional Facility and commenced this action alleging negligence and medical malpractice.   Following a trial, the Court of Claims found defendant liable and ordered it to pay claimant damages for pain and suffering, and loss of earnings.

 Contrary to defendant's contention, the court did not err in allowing claimant's expert, a board-certified orthopedic surgeon from New York City, to testify to the acceptable standards of care in Livingston County.   Claimant's expert testified that the physician who treated claimant deviated from acceptable standards of care by waiting six weeks before referring claimant for an orthopedic consult rather than referring him for an immediate consult and by failing to make a report of claimant's initial examination.  “A physician's duty is to provide the level of care acceptable in the professional community in which he practices” (Schrempf v. State of New York, 66 N.Y.2d 289, 295, 496 N.Y.S.2d 973, 487 N.E.2d 883;  see, Bernard v. Block, 176 A.D.2d 843, 846, 575 N.Y.S.2d 506).   Here, claimant's expert testified that the physician hired by defendant to treat claimant deviated from the accepted standards of care of all interns and primary care physicians regardless of where they practiced.

 The court did not err in determining that defendant failed to meet its burden of proof on the issue of income tax adjustments to lost earnings pursuant to CPLR 4546.   The court erred, however, in taking judicial notice of a 4% inflation rate with respect to the award for future lost earnings.   Although a court may apply an inflation rate to such an award in addition to the rate provided by CPLR 5031(e) (see, Schultz v. Harrison Radiator Div. Gen. Motors Corp., 90 N.Y.2d 311, 317-320, 660 N.Y.S.2d 685, 683 N.E.2d 307), it is improper to do so in the absence of expert testimony (see, e.g., Brown v. State of New York, 184 A.D.2d 126, 129, 592 N.Y.S.2d 533, lv. denied 81 N.Y.2d 711, 600 N.Y.S.2d 442, 616 N.E.2d 1104).

We modify the judgment, therefore, by reducing the amount of future lost earnings to $253,000, and we remit the matter to the Court of Claims for recalculation of the amount of future lost earnings plus the 4% statutory factor (see, CPLR 5031[e] ) and the amount of the annuity contracts.

Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Court of Claims for further proceedings.

MEMORANDUM: