New York State Court of Claims

New York State Court of Claims

Winters v. THE STATE OF NEW YORK, #2002-013-520, Claim No. 88454


The State is liable on the theory of medical malpractice for the pain and suffering experienced by a prison inmate who waited three years for corrective surgery of a condition that had been diagnosed before she entered State custody.

Case Information

ANTHONY WINTERS, as Administrator of the Estate of OLEVIA OUSLEY-WINTERS The caption of this action was amended (Motion No. M-61804, Jan. 29, 2001) to indicate that Anthony Winters, her former husband and father of her minor child, had received Letters of Administration of her estate in May 2000.
Claimant short name:
Footnote (claimant name) :
The caption of this action was amended (Motion No. M-61804, Jan. 29, 2001) to indicate that Anthony Winters, her former husband and father of her minor child, had received Letters of Administration of her estate in May 2000.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 1, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Olevia Ousley-Winters entered the State correctional system on May 24, 1991. She was transferred to the custody of the Department of Correctional Services (DOCS) from the Westchester County Jail, where she had been diagnosed as having a rectovaginal fistula that required surgical repair. At her intake into DOCS custody, she informed the medical staff of her condition and of the tests that had been made to confirm it. It was not until December 10, 1993, however, that the surgical repair was performed. This claim seeks money damages in compensation for DOCS' allegedly inordinate delay in providing her with needed medical treatment.

Mrs. Winters passed away prior to the trial of this action, and consequently her deposition testimony was introduced into evidence. At her examination before trial she testified that in late 1990, while she had been incarcerated in Westchester County Jail, she experienced "for the first time ever" (Exhibit 13, pp. 14-15) fecal discharge coming out of her vagina. She stated that it was painful and burning. Records from the Westchester County Medical Center (Exhibit 3) reveal that no fistula opening was observed on several physical examinations. In January 1991, however, material from a Fleet enema was seen to flow from the vaginal area. Her complaints continued, and in March 1991 a blue dye enema was used. When a sponge placed in her vagina was stained by the dye, a sigmoidoscopy was ordered. The procedure ultimately performed on May 15, 1991 was a colonoscopy (Exhibit 5), which confirmed the presence of a fistula, an opening between the vagina and rectum (Exhibit 1). Claimant stated that she was told she would be scheduled for surgical repair of the condition. Almost immediately, however, she was transferred to State custody.

DOCS medical records (Exhibit 17, pp.1-7), when she was admitted to Bedford Hills Correctional Facility, indicate under the notation for current medical complaints that Mrs. Winters had a rectovaginal fistula and frequent vaginal infections, that a colonoscopy had been performed on May 15, 1991 with "results pending," and that she experienced burning with bowel movements and had "frequent discharge, rectal/vaginal discharge." The May 31 entry, a Gynecological Admission Report, refers to the rectovaginal fistula as "probably a chronic problem (
id., p. 51). On June 3 she complained of a swelling over her vulva.
On June 14, 1991, Mrs. Winters was transferred to Summit Correctional Facility (Summit) to take part in the shock incarceration program. Again, her intake medical notes indicated the history of a fistula and the fact that a colonoscopy had been performed (
id., p. 48). The notes also reported that she had frequent vaginal infections, and on June 20 noted that she said she believed she was getting an infection and also that she requested aspirin. On June 25 she was transferred from Summit to Albion Correctional Facility (Albion). The rectovaginal fistula was again referenced. On July 1 she was seen by a physician who did a microscopic examination of her vaginal discharge and confirmed the presence of a yeast infection, for which she was given medication. Although the doctor's note mentioned the rectovaginal fistula, there was no mention of treatment for the condition. Mrs. Winters was asked to sign a request for health information so that the records from Westchester County Medical Center could be obtained (Exhibit 17, p. 137; Exhibit 9).
During the following year Mrs. Winters made a number of attempts to obtain treatment for her medical condition. On August 30, 1991 her workload was restricted from lifting heavy objects until she could be seen by a gynecologist (Exhibit 17, p. 43); on October 7, 1991 she requested an appointment with a doctor for "discussion of paperwork from Westchester County" (
id., p. 41). The medical records also reveal at least seven other occasions between October 1991 and January 1992 when she reported to health personnel that the condition was causing her problems. During this time she was given anti-inflammatory medication and medication for pain. In November 1991 the facility's physician's notes stated: "Rectovaginal fistula; constant drainage; cannot get record of GI consult when in Westchester -- refer to GI clinic" (Exhibit 17, p. 39). At her deposition, Mrs. Winters stated that on two separate occasions she made copies of the documents she had from Westchester Medical Center and delivered them to the medical staff at Albion, but she acknowledged that she had refused to turn over her own copy because, as she stated to a nurse in April 1992, "It took me 10 months to get it!" (id., p. 30).
She also estimated that she filed five or six grievances while at Albion and several more after she was transferred to Bayview Correctional Facility (Bayview). In November 1991 she wrote to DOCS Superintendent Coughlin (Exhibit 20), and received a response stating that her complaints were being addressed and suggested that she take her concerns to the attention of facility staff using existing sick call procedures (Exhibit 22). February and March 1992 letters from the New York City Legal Aid Society to the Albion Superintendent indicate that she also sought the assistance of that organization (Exhibit 21 and 26).

In January 1992, Mrs. Winters was sent to Strong Memorial Hospital. The barium enema radiographic procedure performed there did not confirm, or eliminate, the possibility of a fistula. It was recommended at that time that the colonoscopy results and a gynecological consultation be obtained (Exhibit 17, p. 36). Mrs. Winters testified that after that appointment, when she was finally informed of the results in late February, she was told by the facility nurse, Nurse Johnson, that the tests had shown that she did not have a fistula. This upset her, as is confirmed by Nurse Johnson's notations in the health record (
id., p. 33 ["ignored possible resolutions. Wants medical department to order more tests regarding questionable Rectal/Vaginal fistula"]). Nurse Shirley Johnson was deposed and asked about this event. Her memory was vague, however, and she recalled primarily only that Mrs. Winters had been very unhappy and angry and talked incessantly (Exhibit B, pp. 12-15). According to Mrs. Winters, it was because of this upset that on one subsequent occasion, June 17, 1992, she refused to be examined.
It does not appear that the Westchester County Medical Center records were available for the January 1992 consultation, because in March 1992 she was asked to execute another release for those records (Exhibit 24). She also wrote directly to the Medical Center, stating that for some reason her colonoscopy results had not been forwarded to Albion and requesting that they be sent "so that I may acquire the proper medical attention I'm in need of" (Exhibits 7 and 24). She again wrote to Commissioner Coughlin, who responded by saying that "despite a negative diagnostic test in the past, you have been referred back to the gynecologist for a reevaluation" (Exhibits 22 and 25). At her examination before trial, she stated that during all this time her requests that the blue dye enema procedure be repeated were denied.

An inmate grievance filed by Mrs. Winters in March 1992 was confirmed with clarification (Exhibit 27). The following description was given:
An investigation of grievance revealed that on May 15, 1992 in Westchester County, Grievant was informed that she had an Anal/Vaginal Fistula. The doctor made a referral for Grievant to have a rectal consultation for repair (surgery). Grievant was transferred to a State Correctional Facility before the rectal consultation was scheduled.

Grievant's medical problems have been addressed and monitored by the Medical Department. Grievant was examined on February 10, 1992 by an outside physician. The ultrasound consultation states in part: despite considerable attempts, unable to demonstrate a Rectovaginal Fistula. The ultrasound did not conclusively exclude the possibility of such a fistula.

Grievant was scheduled to see one of the part-time gynecologists on March 24, 1992 and March 31, 1992. Both appointments were canceled by the Gynecologist.

Grievant's name is at the top of the Gynecologist's waiting list and she will be seen the week of April 6, 1992. Due to the two conflicting and/or inconclusive examinations, Grievant will be seen by a different Gynecologist, who will evaluate Grievant's complaints and make any necessary medical referrals.

On April 22, 1992, Mrs. Winters was again asked to sign a third request for health information to obtain the 1991 colonoscopy records. The Westchester County results finally were available when she had a second consultation at Strong Memorial Hospital (Exhibit 31) on June 17, 1992. The DOCS consultation form of that date (Exhibit 8) noted the results of the procedure, as well as complaints of "daily" vaginal discharge and vaginal infection. Following his examination, and despite the fact that she declined to be examined rectally, the consultant, Dr. Sharma, reviewed the information from Westchester County Medical Center, specifically the colonoscopy and the rectal dye test, as well as her history of vaginal discharge and infection, and concluded that she should be referred to a rectal surgeon for repair (Exhibit 8; Exhibit 13, pp. 43-44).

There was some dispute at trial about whether Mrs. Winters refused to go to a consultation at Strong Memorial Hospital scheduled for August 6, 1992. A notation on a request and report of consultation form (Exhibit 17, p. 95) has the word "refused" written on it. At her deposition, however, she stated that the only time she refused treatment or evaluation was the occasion when she refused to be examined rectally by Dr. Sharma on June 17, 1992. In light of the many consultations that Mrs. Winters kept and the evaluations she had performed, it must be questioned whether the statement "refused" relates to her actions or to something else, such as perhaps departmental approval.

In September 1992, Mrs. Winters was transferred to Bayview, where she took part in work release for part of each week. In October 1992, she was seen by a gynecologist who referred to the colonoscopy report test results showing fistula, but determined that further procedures should be run to identify its precise location. After that date, she was seen by medical staff on at least seven other occasions, but no further procedures were ordered or performed, except that she was placed on a low residue diet. In December 1992 she was reported to be "very anxious about recto-vaginal fistula," and again it was recommended that she be referred to a physician (Exhibit 17, p. 16). She continued to seek care for the condition in January 1993, at one point complaining that "stool constantly oozes from vagina" (
id., pp. 13, 14, 15). On June 8, 1993, Mrs. Winters wrote to a DOCS grievance supervisor regarding her problem which, she stated, had extended over three years (Exhibit 35).
It appears from her medical records that a second colonoscopy was performed at St. Agnes on April 15, 1993 (Exhibit 18, p. 12). No surgical appointment was made, however, although she was returned to the hospital in June only to find that no arrangement had been made for the use of an operating room. Her grievance relating to that event was accepted on July 8, 1993, and Mrs. Winters was reimbursed the money it had taken for her to travel to the hospital. She was then told that the medical department had contacted the surgeon to make an appointment, but that surgery would have to await the availability of a gynecologist. Before an appointment was made, Mrs. Winters was transferred to Parkside Correctional Facility (Parkside), from which she was placed on full work release. She was later informed that an appointment had been made for her for August 20, 1993, in order for her to meet the new gynecologist who would assist the surgery (Exhibit 38). That examination did not occur until October 1993, and at that time the fistula was a half centimeter in diameter and could be identified with a probe (Exhibit 18, p. 91). Surgery to repair the fistula was performed on December 10, 1993, within a month after Mrs. Winters was paroled.[1]

Dr. Norman Reiss, who is board certified by the American College of Gynecology and Obstetrics, testified on behalf of Claimant. He testified that in the past he has participated in five or six repairs of rectovaginal fistulas, always in conjunction with a colorectal surgeon. The condition, he explained, is caused by a communication, a tunnel-like hole, between the rectum and the vagina. Once the problem is confirmed, consultation between a gynecologist and a colorectal specialist would be required for treatment and repair.

The most common etiology of a rectovaginal fistula, he stated, is birth trauma, during which there can be injury to the structures between the mother's vagina and rectum. Mrs. Winters' son had been born in 1985, and she had a median episiotomy. This, he explained, is an incision that is supposed to stay above the anus and rectum, but during delivery it is possible for it to extend into the rectal sphincter. Such an extension occurred in her case (Exhibit 19), and this was the most likely cause for the fistula that appeared some years later. He considered it to be quite possible for her to be asymptomatic for years, either because of her natural resistance or because the fistula was slowly developing as a result of chronic inflammation in the area. Once a fistula has formed, the only acceptable course of treatment, in his opinion, is surgical repair.

If the patient is actually passing fecal matter through the vagina, the repair should be done immediately, he stated, within thirty days at the latest and preferably within fifteen days, after confirming the condition. A longer delay runs the risk of more surgical complications and more tissue inflammation, as well as extending the period of time the patient would suffer from the burning, irritation, pain and "horror" of the symptoms (Transcript, p. 54). If performed by a competent surgeon, a prompt repair should be successful in all cases. As the fistula grows, however, it becomes worse and the chances of a successful repair diminish. In addition, of course, the patient would suffer increased discomfort and embarrassment because of odors and inflammation in surrounding tissues and structures.

Dr. Reiss considered the blue dye enema used on Mrs. Winters to be an appropriate diagnostic test to confirm whether there is an actual communication between the two. A colonoscopy would also be appropriate, and it should have been performed immediately. Dr. Reiss was highly critical of the fact that DOCS medical records indicated that the results of the colonoscopy performed at the Westchester County Medical Center were not yet known nine days after the procedure was performed. "You don't do diagnostic tests and not have it reported. What is the point of it?" (Transcript, p. 63). Although Mrs. Winters was not in the custody of DOCS when the procedure was performed, in his opinion it was a departure from good medical practice for the prison intake physician not to call and have the results faxed immediately.

The swelling over the vulva that Mrs. Winters experienced on June 3, 1991 indicated to Dr. Reiss that there was an inflammatory reaction causing edema in that area. An antifungal cream would be appropriate treatment for a vaginal infection, but in his opinion the aspirin or Tylenol that she was frequently prescribed probably gave no relief. He also stated that a prolonged period of inadequate treatment, creating frequent infections and inflammations would have the result of weakening her vaginal walls. This, he stated, was most likely the reason she was told that she could not in the future go through normal childbirth.

Defendant's medical expert was Dr. Lawrence Sternberg, also board certified in obstetrics and gynecology. He agreed that the likely origin of Mrs. Winters' rectovaginal fistula was the extension of the episiotomy that was performed during the 1985 delivery of her son. It was a fourth degree extension, he stated, which means that if it is not repaired a channel, or fistula, will inevitably result. The extension was repaired at the time, but in his opinion this repair broke down over time as a result of inflammatory responses between the vagina and rectum. A fistula of the type involved here is, in his opinion, a recognized complication of such a repair, and the location of this one, as indicated on the St. Agnes medical records, is consistent with that origin, as it was located only two centimeters from the opening of the vagina and rectum in the very area where the 1985 repair had been performed.

It was also his opinion that the breakdown began relatively early, based on Mrs. Winters' report of frequent vaginal or urinary tract infections after the delivery and a mention shortly after delivery of fecal matter coming from the vagina. This would mean, he said, that it was a chronic condition, even by the time she first entered Westchester County Jail. He believed that it would be inconsistent with the nature of such a fistula for it to develop for the first time many years after the event that caused it. Correction of a chronic condition of this sort is not as urgent as it would have been if the situation occurred all at once and, in fact, correction would only become urgent with an increase in symptoms resulting in the ill health of the patient. Symptoms of this would consist of a breakdown of the skin around the vagina, chronic vulvitis, and continual fecal discharge requiring the patient to change clothes two or three times a day.

Deferring consultation after her entrance into the State penal system was appropriate because on her initial examination the doctor was unable to identify the fistula and had only her complaints and the report of a colonoscopy to go on. He pointed out that there was no report of a bacterial infection, which would be indicative of a fistula, unlike a yeast infection which is more common in the vagina and not indicative of a fistula condition. On his review of the entire DOCS record, Dr. Sternberg found no evidence that Mrs. Winters ever had a bacterial infection in the vaginal area. He also gave his opinion that, in the absence of aggravated symptoms, the fistula would not be associated with any pain.

He described a half centimeter fistula as being very small, one in which scar tissue could often effectively block, at least until some trauma resulted in enlarging the opening. It would not, in his opinion, be a deviation of appropriate medical care for examining doctors to be unable to identify a fistula of this size on simultaneous rectal and vaginal examination. In light of the inconclusive results of the barium enema procedure and the absence of any bacteriological infections, it was Dr. Sternberg's opinion that it would be reasonable for a physician to conclude that there might be no fistula or, if there had been one earlier, that it had spontaneously regressed. In addition, he stated that unless the symptoms were aggravated and the patient were being prepared for surgery, a low residue diet would not be of any particular benefit.

In contrast to Dr. Reiss, Dr. Sternberg stated that he had known some patients who had rectovaginal fistulas but elected not to have them surgically repaired because of the risks of surgery and because they remained relatively asymptomatic. He acknowledged, however, that they chose this course only when there were relatively few symptoms. While admitting that there was delay in diagnosing Mrs. Winters' condition, he reaffirmed that in his opinion DOCS made reasonable attempts to diagnose and treat the condition. She was examined by at least three individuals, including a gynecologist, referred to the gastrointestinal clinic at Strong Memorial Hospital, and given a barium enema in 1992. On none of those occasions were the medical practitioners able to confirm the fistula that had been seen in the 1991 colonoscopy. It was Dr. Sternberg's opinion that between 1991, when a fistula was first diagnosed, and 1993, when it was confirmed and surgery was performed, Mrs. Winters sustained no permanent injury. With respect to its effect on her ability to have a normal delivery in the future, he stated that the 1985 extension of the episiotomy and subsequent repair would have made normal childbirth more risky for her in any event.

The State of New York has a duty to care for the health and safety of the prison inmates in its custody, to provide them with reasonable and adequate medical care, including proper diagnosis and treatment, and to do so without undue delay (Correction Law §70[2][c];
Cauley v State of New York, 224 AD2d 381; Kagan v State of New York, 221 AD2d 7; Marchione v State of New York, 194 AD2d 851; Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701). To recover in an action based on allegations of medical malpractice, a claimant must prove that the care and treatment provided by the State constituted a deviation from the applicable standard of care (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804) and that such deviation was the proximate cause of the injury or other damage (Parker v State of New York, 242 AD2d 785). The analysis to be applied in these cases was recently restated by the Court of Appeals:
The prevailing standard of care governing the conduct of medical professionals has been a fixed part of our common law for more than a century (see generally Pike v Honsinger, 155 NY 201 [1898]). The Pike standard demands that a doctor exercise "that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where [the doctor] practices" (id., at 209).... Although malpractice jurisprudence has evolved to accommodate advances in medicine, the Pike standard remains the touchstone by which a doctor's conduct is measured and serves as the beginning point of any medical malpractice analysis.

(Nestorowich v Ricotta, 97 NY2d 393, 398.) In Pike, it was explained that a doctor is not required to guarantee a good outcome but to do "what he thinks is best after careful examination" and "to use the skill and learning of the average physician, to exercise reasonable care and to exert his best judgment in the effort to bring about a good result" (Pike v Honsinger, supra at 210, quoted in Nestorowich, supra at 399). Medical malpractice can occur in the context of omissions and failures, as well as actual treatment, and a viable action may be based as readily on unreasonable delay in properly diagnosing and treating a medical condition as it can on allegations that the treatment provided was improper (Stanback v State of New York, 163 AD2d 298).
Despite the wealth of documentary and expert evidence and the able, detailed arguments of counsel in their post-trial briefs, the truly critical facts regarding Mrs. Winters' medical treatment while in the custody of DOCS are actually rather simple and essentially undisputed. From the moment she entered the State prison system, it was known by DOCS medical staff that (1) she had complaints consistent with a rectovaginal fistula; (2) the fistula was not observable on physical examination; (3) two relatively simple procedures -- a Fleet enema and a blue dye enema -- had confirmed the existence of the fistula; (4) a colonoscopy had been performed just prior to her admission and that it further confirmed the existence of the fistula; and (5) medical professionals at Westchester County Medical Center had concluded that the fistula should be surgically repaired. Granted, DOCS only had Mrs. Winters' word for these things at first, but each fact could be easily and readily confirmed or disproved. If she was reporting her condition accurately, then there was an unquestioned need for prompt action to confirm the diagnosis and effect the repair. The question before the Court, therefore, is whether, when faced with this information and possessing the ability to quickly confirm or refute what they were told, the State's medical staff "did what they thought was best after careful examination?" Did they use their skill and learning "to exercise reasonable care and to exert [their] best judgment in the effort to bring about a good result?" I do not think or believe they did.

The relatively straightforward procedures employed at the Westchester County Jail demonstrate just how easily her condition could be verified. Because of the outcome of those earlier tests, we also know that if the State had taken similar measures, the same condition would have been confirmed. There is no need, in this instance, to speculate about whether earlier, appropriate investigation would have revealed the source of her problems. It would have. The fistula was present in late 1990, and neither expert suggests that it somehow closed up or repaired itself between that date and December 1993, when corrective surgery was finally performed.

Defense counsel asserts that the State's doctors were not aware of the results of the colonoscopy until June or July 1992, but apparently fails to recognize that this fact alone calls into question the adequacy of the medical care that was provided to Mrs. Winters. Any responsible physician who received information from a new patient that recent medical tests had confirmed an inherently distressing and potentially dangerous condition that required surgery would, without doubt, quickly attempt to obtain the easily available records of those recent tests and/or replicate the results of the rather simple tests (Fleet enema, blue dye enema, colonoscopy). For the State's doctors to do anything less falls below the accepted standard of care and, in my opinion, their failure to take any of those steps for several years is almost beyond negligence and borders on neglect.

Defendant asserts that Claimant's expert did not have the background to testify as to the level of care acceptable in the professional community where Mrs. Winters was treated (
Schrempf v State of New York, 66 NY2d 289). Here, however, as in Kelly v State of New York (259 AD2d 962), I find that the medical care given to Mrs. Winters "deviated from the accepted standards of care of all... physicians regardless of where they practiced" (id., p. 963).
Contrary to Defendant's arguments, there was no evidence that any action on the part of Mrs. Winters interfered with DOCS ability to obtain the necessary information or provide proper treatment. On the multiple occasions when she was asked to sign a release form to permit the Westchester County records to be obtained, she did so. In light of the inattention that was being given to her condition, I cannot fault her for refusing to hand over her only copy of the medical records confirming her condition, particularly as she was quite willing to have additional copies made of those documents. Further, I credit her deposition testimony that on at least two occasions while at Albion she herself made copies and delivered them to the facility's medical offices.

For the same reasons, Mrs. Winters' reluctance to submit to additional physical examinations on at least one occasion[2]
is neither remarkable nor particularly "culpable" conduct. It would be surprising, in fact, if she did not become frustrated when denied, over a period of years, any helpful attention for a condition -- a particularly unpleasant condition -- that she knew she had and that she knew required surgical remediation. Declining on one occasion to have a rectal examination had no effect on the progress of her treatment, because it was evident by then that physical examination alone was not going to reveal the problem and because the physician was still able to conclude from other information that she most likely had a fistula and that a surgical referral was warranted.
The etiology of the condition does not appear to be in dispute and, in any event, whether the fistula had developed only recently, or been present since 1985 and only recently "opened" through some trauma or inflammation process, is entirely irrelevant. What is relevant is that Mrs. Winters had the condition when she entered State custody, that it was an extremely unpleasant condition for which anyone would seek and insist on treatment, and that because she was an incarcerated inmate, Mrs. Winters had no way to obtain that treatment unless it was provided, as it should have been, by DOCS. Prison inmates who must rely on prison authorities for their medical needs have a fundamental right to reasonable and adequate medical care (
Estelle v Gamble, 429 US 97; Kagan v State of New York, 221 AD2d 7, supra).
I hold that the State of New York failed to provide Mrs. Winters reasonable and adequate medical care and that, as a result of that failure, she was forced to endure an exceedingly unpleasant, unhealthy and frequently painful physical condition for the better part of three years. In addition, she had to deal with the frustration of knowing that the condition could have and should have been remedied relatively easily, and also knowing that she was, in fact, powerless to obtain the necessary treatment on her own. There was no proof of any permanent injury, but as compensation for the pain, extreme discomfort, embarrassment, and needless worry that she suffered from shortly after she entered State custody in May 1991 to December 1993, when she finally received the corrective surgery, I award the amount of Three Hundred Thirty Five Thousand Dollars ($335,000.00).

All motions not heretofore ruled upon are now denied.


November 1, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]DOCS assumed the expense of the surgery.
  2. [2]Only her refusal to submit to a rectal examination on June 17, 1992 was conclusively established.