New York State Court of Claims

New York State Court of Claims

Mullally v. THE STATE OF NEW YORK, #2000-010-007, Claim No. 87150


Inmate medical malpractice

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Michael Zeytoonian, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 23, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant alleges that the medical care provided to her by defendant during her incarceration in the State correctional system departed from acceptable medical practices. Specifically, claimant contends that, in 1986, defendant should have performed a weight-bearing acromio-clavicular x-ray of her shoulder rather than an ordinary x-ray. Claimant maintains that the delay in not performing a weight-bearing x-ray until 1992 resulted in prolonged pain and suffering and a worsening of her condition necessitating three surgeries to address her shoulder separation. Claimant asserts that she still experiences pain and has a limited range of motion in her shoulder. Defendant maintains that, prior to 1992, claimant's x-rays consistently showed a normal shoulder without any significant separation and that, therefore, there was no delay in surgery caused by the failure to perform a weight-bearing x-ray in 1986. Defendant also maintains that, contrary to claimant's arguments, the surgeries did not address a significant separation. This claim was heard in a unified trial.

Claimant testified that on February 3, 1986, she fell in the Onondaga County Jail and injured her shoulder. Claimant was x-rayed and examined by Dr. Robert A. Bornhurst. The x-ray report prepared by Bornhurst stated:

There is no evidence of any fracture, dislocation or osseous abnormality.

I do note that the acromion seems to be at a very slightly lower level than the clavicle, though not really separated. This might be residual from some previous trauma, perhaps a ligamentous type injury or tear.

1. No indication of any recent bony injury.
2.With the right acromion very slightly lower than the clavicle, I would wonder if there might have been a previous injury to the ligamentous structures in this area. I don't see any definite separation at this time. If there are persistent complaints in the area, then perhaps it might be necessary in the future to consider special acromio-clavicular views with weight-bearing and with the opposite side for comparison. On the basis of these films alone, though, I wouldn't make that request and would be guided by the clinical evaluation.

(Ex. A, p. 21).
In September 1986, claimant was transferred to a State facility. Claimant testified that, upon her arrival, she complained of a constant ache in her shoulder. The pain continued and, according to claimant, in 1987 the pain increased and she made 10 to 20 complaints that year. She was prescribed pain medication and was x-rayed. She stated that in 1988 she felt progressively worse.

In 1989, claimant experienced other medical problems which included cervical cancer and a fallen bladder. She also underwent surgery for varicose veins. Claimant was prescribed additional pain medications for these ailments which also resulted in a lessening of her shoulder pain.

In 1990, claimant was fitted with a shoulder sling; however claimant used it for only two days because it hurt. Claimant testified that in 1991, her shoulder pain was severe and constant. In early 1992, a weight-bearing x-ray was performed on claimant's shoulder. Thereafter, claimant had surgery on her shoulder to remove "a piece of bone."[1]
Two reconstructive surgeries followed. Claimant testified that she still takes medication for the pain and has a limited range of motion.
Dr. Arthur Davidson provided expert testimony on behalf of claimant. Davidson was licensed to practice medicine in 1948 and was trained in general surgery. He stated that "in [his] day general surgeons did orthopedic surgery," and that he performed orthopedic surgery in the 1960's and 1970's. He conceded that today, most hospitals do not use general surgeons for orthopedic surgery. Davidson stopped practicing full time in the late 1990's and is semi-retired.

Davidson concluded that defendant deviated from acceptable medical practice by not performing a weight-bearing x-ray until 1992 as recommended by Dr. Bornhurst in 1986. According to Davidson, a weight-bearing x-ray would have accentuated the separation and the six year delay in performing such x-ray caused the need for more extensive surgery. Davidson maintained that weight-bearing x-rays are still used today and that, had there not been such delay, the separation could have been pulled together and sutured with catgut. Davison characterized claimant's medical care as no treatment rather than conservative treatment.

Dr. Michael Elia provided expert testimony on behalf of defendant. Elia is a board certified orthopedic surgeon and the Director of Orthopedics at Lawrence Hospital in Bronxville, New York. Upon review of claimant's medical records and x-rays, Elia opined that the treatment claimant received was appropriate given her complaints and the objective findings of the x-rays. Notably, the x-rays did not reveal any significant separation that necessitated surgery in the early years of claimant's treatment and Elia opined that the failure to give claimant a weight-bearing x-ray in 1986 was not improper practice. Elia stated that weight-bearing x-rays are somewhat outdated and were used in a time when the medical community was more aggressive in treating shoulder separations with surgery.

Elia stated that the purpose of a weight-bearing x-ray is to determine if the acromio-clavicular joint is separated. Elia explained that the grades of space between the acromion and clavicle are rated from one to five, with one representing a very slight separation. A weight-bearing x-ray shows the distinction between a grade two or grade three separation. Elia testified that he never would have given claimant a weight-bearing x-ray; nonetheless he noted that the weight-bearing x-ray taken in 1992 revealed only a grade two separation (Ex. A, p. 256). According, to Elia, since the 1960's and 1970's, the medical community has taken a more conservative approach in giving such injuries time to heal and treating them with ice, slings, anti-inflammatory and pain medications, rather than surgery. Elia testified that, over the last 30 years, there has been a trend not to operate on separations graded one to three because surgery has a high complication rate without necessarily resulting in improvement of function. Therefore, surgery is usually reserved for grade four and grade five separations.

Elia explained that a conservative approach should be exhausted first, particularly since a patient may be asymptomatic for a period of time, and that surgery should be performed only as a last resort. According to Elia, a separation cannot worsen, and there was nothing in the record to indicate that claimant's condition had deteriorated as a result of the delay in performing a weight-bearing x-ray. Elia also noted that, even if claimant had been diagnosed with a grade two separation in 1986, the appropriate treatment would have been the same as was administered.

Elia testified that the procedure performed on claimant did not address a severe separation. Elia noted that the x-rays showed that the bones were too close together, rather than separated and that the surgeries, referred to as "Munford procedures," actually removed a section of the clavicle to avoid its rubbing against the joint. Elia also stated that claimant's complaints of pain, rather than a lack of strength or instability, were more consistent with the bones rubbing rather than a separation. Elia stated that, contrary to the testimony of claimant's expert, catgut is no longer used and has been replaced with synthetic materials. Elia noted that claimant had made a few sporadic complaints of shoulder pain between November 1987 and October 1990. Elia explained that many patients live with pain and that complaints are subjective. Elia concluded that claimant's care for the six year period in issue was proper and in conformity with acceptable medical standards.

It is well settled that the State has a duty to provide ordinary and appropriate medical treatment to its inmates (
see, Kagan v State of New York, 221 AD2d 7). However, to establish a claim for medical malpractice, claimant has the burden of proving, by a preponderance of the evidence, that the State departed from the requisite standard of good and accepted medical practice and that such departure was a substantial factor, or a proximate cause, of the claimed injury (see, Schrempf v State of New York, 66 NY2d 289, 295; Mortensen v Memorial Hosp., 105 AD2d 151). "[A] mere possibility of cure does not satisfy a prerequisite to liability;" rather it must be more probable than not that the claimed injury was caused by defendant's malpractice (Mortensen v Memorial Hosp., supra at 158).
Claimant's expert could not state with any degree of medical certainty that, had a weight-bearing x-ray been performed in 1986, it would have revealed a separation necessitating surgery at that time (
see, Stuart v Ellis Hosp., 198 AD2d 559 [expert's opinion that patient should have had a more thorough examination including x-rays was insufficient to establish a prima facie case of medical malpractice]). Indeed, the report of Dr. Bornhurst, upon which claimant relies, stated "not really separated. *** I don't see any definite separation at this time" (Ex. A, p. 21). Further, Bornhurst's own report does not recommend that a weight-bearing x-ray be performed at that time or at any definite time in the near future. Rather, the report stated, "If there are persistent complaints in the area, then perhaps it may be necessary in the future to consider special acromio-clavicular views with weight-bearing and with the opposite side for comparison. On the basis of these films alone, though, I wouldn't make that request ***."
Defendant's expert, Dr. Elia, a board certified orthopedic surgeon, testified that he would never have performed a weight-bearing x-ray and that, even if he had, the treatment claimant received would not have been altered by that which would have been revealed in such an x-ray. Elia explained that claimant had a very slight separation and that the modern day practice was to exhaust all conservative treatments available before resorting to surgery. Elia explained that the degree of separation found in claimant in 1992 was so minimal that the risks associated with surgery did not warrant immediate surgical intervention.

The Court finds the testimony of defendant's expert to be most convincing especially in light of the testimony of claimant's expert (
see, Scariati v St. John's Queens Hosp., 172 AD2d 817 [trier of fact was free to reject conflicting testimony regarding causation]). The Court notes that claimant's expert was a general surgeon and not an orthopedic surgeon and that his knowledge and experience was largely based upon his experiences in the 1960's and 1970's, which seemed outdated compared to that of defendant's expert.
In the instant case, claimant failed to establish that defendant departed from the requisite standard of care and that any delay in providing claimant with a weight-bearing x-ray constituted negligence (
see, Kaminsky v State of New York, ___AD2d___, 696 NYS2d 205; Cauley v State of New York, 224 AD2d 381; Marchione v State of New York, 194 AD2d 851).
Additionally, claimant failed to show proximate cause, i.e., that the delay in conducting a weight-bearing x-ray negatively impacted claimant in the treatment she received (
see, Naughton v Arden Hill Hosp., 215 AD2d 810 [even assuming defendant committed malpractice in its failure to diagnose and admit patient to hospital, there was no proof of proximate cause, i.e., that, had the patient been admitted, the risk of a heart attack would have been prevented or lessened]; Brown v State of New York, 192 AD2d 936 [no proof that delay in treatment contributed to the loss of claimant's larynx]).
In light of all the evidence presented, the Court finds that defendant's failure to call Dr. Dursi, claimant's treating physician, to testify did not significantly detract from the Court's ultimate finding.

Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


March 23, 2000
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to the trial notes or audio tapes unless otherwise indicated.