New York State Court of Claims

New York State Court of Claims

SOTO v. THE STATE OF NEW YORK, #2001-028-0014, Claim No. 99537


Medical Malpractice - Claimant's expert testimony failed to establish deviation from standard of care when fractured wrist was not diagnosed for three and one half days. Claimant did not present with symptoms warranting x-ray until third day. Delay between ordering x-ray in evening and transport to outside hospital next day was not medical malpractice.

Claim dismissed

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):

Claimant's attorney:
MONICA S. ESKIN, ESQ.BY: David J. Eskin, Esq.
Defendant's attorney:
BY: Michael Rizzo, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 4, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

This claim is for personal injuries sustained by the Claimant, Israel Soto, (Claimant) while he was incarcerated at the Department of Correctional Services (DOCS) Hudson Correctional Facility. The matter came on for trial on March 9, 2001. Prior to opening statements, Claimant withdrew his first and second causes of action which alleged the Defendant was negligent in failing to maintain its walkways and in encouraging defective maintenance (Claim, ¶ ¶ 6 & 9). Claimant proceeded on a medical malpractice theory alleging that Defendant delayed in diagnosing and treating Claimant for a fractured wrist injury. Claimant refined his damage claim by stipulating that he was seeking compensation only for the increased pain and suffering
allegedly endured from the delay in diagnosis and treatment.
Claimant testified to the following version of events. At approximately 8:00 a.m. on January 17, 1997, while walking to the prison library, Claimant slipped and fell on ice that had accumulated on a walkway. He landed on his right side injuring his right wrist. Without assistance, Claimant walked to the infirmary where he was treated by Nurse Matthew. She inquired as to the mobility of the wrist and provided Claimant with an ace bandage and Advil.

Claimant returned to the infirmary at noontime and again at 6:00 p.m. Each time he complained of pain and worsening of swelling. On each trip to the infirmary that day, claimant requested an x-ray but was not afforded one. On his third trip, Claimant was given a sling.

On Saturday morning, January 18, Claimant returned yet again to the infirmary, complaining of pain and swelling and he again sought an x-ray. This time, he was told by an unidentified nurse "no one is here to authorize you to be taken out of the facility to be x-rayed."[1]
Claimant described his arm as being discolored and swollen from the tip of his fingers to the elbow. The swelling prevented him from putting his arm in his coat. He returned to the infirmary two more times on Saturday and again on Sunday, January 19.
Claimant testified that on Monday, January 20, he was taken to "Columbus (sic) County Hospital" in Hudson, New York where, according to Claimant, x-rays revealed a "severe fracture" and a doctor applied a splint. Two weeks later, after the swelling subsided, claimant underwent surgery.[2]

Claimant testified that for the three and one half days from the time of his injury until treatment at the hospital, he spoke to many correction officers about the injury. Claimant described the pain as "shooting from the fracture point to my shoulder" and added that he "never felt pain like this before."

Louis J. Benton, Jr., M.D. (Dr. Benton), a Board certified orthopaedic surgeon since 1976, was qualified as an expert without objection, and testified for the Claimant. Dr. Benton testified he examined Claimant on October 20, 2000 and reviewed certain medical records including DOCS Ambulatory Health Records for Claimant (
Claimant's Exhibit 2); Columbia Memorial Hospital(CMH) records of January 20, 1997 (Claimant's Exhibit 7); CMH x-ray report of January 20, 1997 ; Albany Medical Center Hospital records (Claimant's Exhibit 8); AMCH x-ray report of March 25, 1997; and consultation requests dated January 28 and April 18, 1997.
Dr. Benton testified that given the history provided to the nurse on January 17, 1997, the only way to obtain a definitive diagnosis was by x-ray. However, he added that the determination to obtain an x-ray was dependent upon the clinical presentation of the injured party and the observations of the care giver. Dr. Benton opined that it would have been better to obtain an x-ray as soon as possible but that the delay between January 19 and January 20 was "not a mistake."[3]
He added that in retrospect, knowing on January 20 that the wrist was fractured, Claimant probably suffered additional pain and some swelling since the injury was not immediately splinted.
On cross-examination, Dr. Benton testified it is not unusual to delay treatment due to swelling. He acknowledged that an ace bandage provided minimal immobilization and the sling would discourage use of the injured wrist and provide some comfort. Dr. Benton further acknowledged that the nurses' observations regarding Claimant's ROM (range of motion) and the application of traction (described as a gentle pulling on the injured wrist) indicated that the injury was not severe and possibly no fracture was present.

Brenda Matthew, a DOCS employee and registered nurse, was on duty at the Hudson Correctional Facility Infirmary when Claimant arrived complaining, "I just fell on the ice, I have pain in my right wrist." She completed the Report of Inmate Injury (Claimant's Exhibit 1). Nurse Matthew observed no discoloration or deformity, slight swelling, good range of motion and no pain when traction was applied to the metacarpal joints of the right fingers. She did not refer Claimant for x-rays because in her assessment x-rays were unnecessary. Instead, she immobilized the hand, applied ice and provided Advil. Claimant was directed to return if his condition worsened.

Nurse Matthew also testified regarding entries in Claimant's Ambulatory Health Records. On January 17
h, Claimant returned to the infirmary where he received a wider ace bandage and a sling. According to Matthew, there was no record of Claimant appearing for treatment on January 18. Rather, on January 19, Claimant appeared at the Medical Window before noon complaining of pain. Gross edema from the fingertips to the elbow with discoloration was noted and the nurse decided to contact the doctor "to aprise {sic} him of condition of inmate and possible trip to ER" (Claimant's Exhibit 2). Dr. Rosenfield was the Doctor "on-call", as a doctor is on site weekdays for three hours. At 7:20 p.m. on January 19, Dr. Rosenfield was given a verbal report of the injury and treatment and the doctor ordered continued use of Advil, immobilization and for claimant to be sent for x-ray of the right wrist the following day . On cross-examination, Matthew testified that Hudson Correctional Facility has "sick call" seven days a week at 6:00 a.m. and 4:00 p.m. She further stated that if Claimant had gone to the infirmary on January 18, there would have been an entry in the Ambulatory Health Records. According to her review of the medical records, she testified Claimant was seen four times, twice each on the 17th and 19th of January before being sent to CMH on January 20.
The crux of Claimant's case is that the Defendant committed malpractice by delaying diagnosis and treatment of the wrist injury, thereby causing additional pain and suffering for Claimant to endure. To maintain an action for injuries sustained while under the care and control of a medical practitioner, a party may proceed upon a theory of simple negligence or upon the more specialized theory of medical malpractice (
Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). The theory of simple negligence is restricted to those cases where the alleged negligent act is readily determinable by the trier of the facts on common knowledge. The negligent act or omission by a nurse can be malpractice if the nurse's conduct itself constitutes medical treatment or such bears a substantial relationship to the rendition of medical treatment by a licensed physician (Bleiler v Bodnar, 65 NY2d 65). However, where the treatment received by the patient is an issue, the more specialized theory of medical malpractice must be followed (see, Twitchell v MacKay, 78 AD2d 125; Hale v State of New York, supra.
When medical malpractice involves patient treatment, three component duties are owed by the physician to the patient: (1) the duty to possess the requisite knowledge and skill such as is possessed by the average member of the medical profession; (2) a duty to exercise ordinary and reasonable care in the application of such professional knowledge and skill; and (3) the duty to use his best judgment in the application of this knowledge and skill (see, Littlejohn v State of New York 87 AD2d 951, 952 citing Pike v Honsinger, 155 NY 201, 209- 210). As such, the burden was on Claimant to establish that medical personnel at Hudson Correctional Facility failed in one or more of those duties. The burden was also on Claimant to establish that the alleged negligence (the failure or delay in treating his injury) was a proximate cause of his damages, i.e., that it was a substantial factor in causing or exacerbating his injuries (Kennedy v Peninsula Hosp. Center, 135 AD2d 788; Koster v Greenberg, 120 AD2d 644).
The State has an obligation to provide ordinary and appropriate medical treatment to those inmates in its institutions (Gordon v City of New York, 120 AD2d 562, affd 70 NY2d 839). As this is a medical malpractice action alleging improper treatment, expert medical testimony was required (Morgan v State of New York, 40 AD2d 891; see also, Macey v Hassam, 97 AD2d 919). Claimant's expert did not, however, present any testimony that the staff at Hudson Correctional Facility lacked the requisite knowledge and skill, nor did he testify that the medical staff failed to exercise ordinary care or their best judgment. Therefore, the record herein does not support finding a failure to exercise any professional judgment (Huntley v State of New York, 62 NY2d 134, Herold v State of New York, 15 AD2d 835, Cohen v State of New York, 51 AD2d 494, affd 41 NY2d 1086, Amadon v State of New York 182 AD2d 955, lv den 81 NY2d 701), or that there was "almost casual consideration" of the situation (Clark v State of New York, 99 AD2d 616, 617).
Similarly, Claimant's expert did not testify that there was any deviation from the standard of care. The following exchanges from direct and redirect examination highlight this finding.
Q. abWhat is your knowledge of the treatments that Mr. Soto received between the date of the injury on January 17th until the date he was brought to the hospital on January 20th ?
A. abThe best answer I can give you to that question is a quote from the NYS Department of Correctional facility health record written on 1/17. The quote is "complaining of right medial wrist pain and dorsal wrist pain, sling dispensed, elevate hand, ice, Advil, return if symptoms worsen". That was the treatment that he received on 1/17.
* * *.
Q. abDoctor, regarding that treatment on January 17th, do you have an opinion to a reasonable degree of medical certainty as to whether that was the appropriate care?
A. abI do have an opinion.
Q. abWhat is your opinion?
A. abThe opinion is based on the presentation of that man to the health person concerning the severity of the injury. With this history and this complaint, an examination is carried out, if there is noted significant pain, significant swelling, and again this is a decision made by that individual normally with his history and what I read here, medial wrist, dorsal wrist pain, normally a diagnosis is made, a definitive diagnosis is made by way of an x-ray. After that diagnosis is made, then appropriate treatment is provided.
Q. ab According to the next entry, that you have reviewed for the treatment to Mr. Soto, can you once again tell us what it was that was noted on January 19th.
A. abI quote again from their health record. "Still complaining of right wrist pain. Right wrist fingers to elbow edematous and discolored. Has not worn sling as ordered. Dr. Rosenfield ordered continue Advil, immobilization send out for wrist x-rays tomorrow, 1/20. So apparently, the examiner noted some worsening in this man's condition and he/she picked up the phone, talked with a physician and it was decided to get an x-ray.
Q. abDo you have an opinion to a reasonable degree of medical certainty whether the delay between January 17 the day of the accident and January 20th the date that Mr. Soto was brought in for x-rays is proper medical care?
A. abI have an opinion.
Q. abWhat is your opinion doctor?
A. abIt would be proper at least on l/19 when further swelling, discoloration were noted with continued pain to obtain an x-ray as soon as possible to make the diagnosis. The decision to do that or to get that x-ray at the time of the initial injury, clearly it would have been better to get the x-ray when this man was injured on 1/17. It may be, or it was the decision to get the x-ray on his clinical presentation the observer, felt that the clinical presentation, apparently the observer felt the clinical presentation of his wrist was not severe enough to pursue an x-ray at that time. And that is the best I can do on that.
Q. abLet me ask you this doctor? Do you have an opinion to a reasonable degree of medical certainty whether the delay in treatment from January 17 to January 20th caused additional and excessive swelling?
A. abYes, I do.
Q. abWhat is your opinion?
A. abAnd this opinion is given in retrospect because by 1/20 we know it was in fact fractured. However, I think the treatment of the injury from the time of the injury until 1/20 was basically no treatment for a fracture and it would have added to this man, without a splint, i.e., that no treatment, no immobilization without the splint it would have added somewhat to the swelling and to his complaint of pain.
Q. abDo you have an opinion to reasonable degree of medical certainty whether the injury could have been treated sooner before January 20th with a splint?
A. abI don't believe that it would have made a significant difference as far as the closed reduction in the application of the external fixator is concerned.
* * *
Q. abDo you have an opinion to a reasonable degree of medical certainty, whether the decision to wait yet another day on January 19th at 7:20 p.m. was proper medical care?
A. abYes, I have an opinion.
Q. abWhat is your opinion?
A. abWe are now talking about a delay of from 7:20 p.m. until the following day and someone who has already had a sling, ace bandage for two previous days, the point I am making I don't feel that the delay of another 10 or 12 hours is a mistake. Clearly, it would have been better to x-ray him right away, but there are practical reasons why that did not occur another 10 or 12 hours did go by. But that is the best opinion I can have.
Q. abDo you have an opinion to a reasonable degree of medical certainty whether Mr. Soto's pain and suffering might have decreased if he had been brought to the doctor on January 19th rather than on the 20th and been splinted on the 19th?
A. abThe best statement I can make on that is yes. I think it is clear that if a splint were applied or a definitive fracture treatment had been started earlier, he would have less complaint of pain and possibly less swelling.

* * * Dr. Benton's testimony that an x-ray "should have been obtained as soon as possible," when juxtaposed against his testimony that the nurses' observations indicated initially the injury was not severe and, from those observations, one could further conclude that there was possibly no fracture, reflects nothing more than a difference of medical opinion in how best to proceed. While Dr. Benton would have preferred that a "definitive diagnosis" be made by x-ray, a medically required x-ray was dependent upon the presence of significant pain and significant swelling, factors absent on January 17. He acknowledged, that the "clinical presentation of Claimant" did not warrant an x-ray until January 19.[4] Since a difference of opinion between experts does not support liability (see, Darren v Safier, 207 AD2d 473, Ibguy v State of New York, 261 AD2d 510), it necessarily follows that the recognition of treatment choices by Claimant's expert must likewise preclude liability.
In the absence of any testimony from his medical expert that the medical treatment Claimant received was improper, the Court finds and concludes that Claimant has failed to establish by a preponderance of the evidence that the medical care provided to Claimant was not appropriate or adequate.
Accordingly, the State's motion to dismiss made at the conclusion of the trial, upon which decision was reserved, is now granted and the claim is hereby dismissed. The Chief Clerk is directed to enter judgment accordingly.[5]

June 4, 2001
Albany, New York

Judge of the Court of Claims

[1] All quotations are to the trial notes or audiotapes unless otherwise indicated.
[2] Medical records received into evidence as Claimant's Exhibits 7 & 8 disclosed Claimant was diagnosed at Columbia Memorial Hospital in Hudson, New York with a comminuted fracture of the distal radius and the surgery performed was for external fixation and reduction of the fracture at Albany Medical Center Hospital.
[3]Claimant's expert based his opinion upon a review of the aforementioned records in which there was no indication that Claimant was seen by medical personnel at the prison on January 18.
[4] Dr. Benton did not testify whether accepted medical practice required an x-ray on January 18. Had he done so, the Court would have had to resolve the conflict between Claimant's testimony that he went to the infirmary twice that day and the medical records which disclosed no visits to the infirmary.
[5] All other motions upon which the Court reserved decision during trial are denied.