New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2002-016-031, Claim No. 100984


Claim was dismissed for failure to prove by a preponderance of the evidence that the state improperly treated claimant's eye at Sullivan Correctional Facility following the entry of a foreign body into the eye.

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):

Alan C. Marin
Claimant's attorney:
Leslie Perez
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carol A. Cocchiola, Esq., AAG
Third-party defendant's attorney:

Signature date:
March 25, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the claim of Leslie Perez, in which he complains of medical treatment he received at Sullivan Correctional Facility. The claim was tried at Sullivan, where Mr. Perez testified on his own behalf. For its part, defendant called Doctor Wladsylaw Sidorowicz, a facility internist.

Claimant testified that on July 15, 1999, while working with a sanding machine, a foreign object entered his left eye. When he returned to his cell and tried to rinse it out, he noticed that something was "stuck" in the pupil. He went to emergency sick call where a nurse examined him and according to Perez, tried unsuccessfully to flush the object out of his eye. Perez recalled that he insisted on being taken immediately to an outside medical facility for treatment, but the nurse told him he would be seen by a facility doctor the following morning. In the meantime, he was instructed not to rub his eye and was given a patch to cover it. His medical records for that day indicate, among other things, that there was a "foreign body in the [left] eye . . . small object - unremovable . . . unable to flush . . . Instructed . . . do not rub eye - wear patch." See claimant's exhibit 1.

Perez recalled that after he returned to his cell, the "metallic object" scratched his eyelid every time he blinked or moved his eye and because it was so uncomfortable, he removed the patch and tried again to flush the object out and also rubbed his eye. He said that when an officer admonished him about taking the patch off, he announced that he could not wait until the morning and was then sent back to the infirmary where he stayed until he saw a doctor the next day. His medical records for July 15 indicate that the infirmary received a call from the "block officer that [Perez] showed up to block carrying patch & rubbing his eye. [Perez] to be informed that if he does not keep patch on and continues to rub his eye – he will have to stay in infirmary overnight for observation." Records from later that night state "[Perez] admitted to infirmary for observation due to non compliance. [He] took off patch, rinsed out ointment, and was trying to remove object himself - stated ‘I can't wait until tomorrow.'"

Perez testified that the next day, Dr. Sidorowicz examined him and told him there was nothing in his eye, and that it was just an abrasion. Perez's medical records for that day indicate that claimant was suffering from a "corneal abrasion" and that there was "no evidence of [a foreign body]." They also include an indication that Perez was instructed to use eye ointment and told to return immediately if his pain increased or he had visual changes.

A follow-up visit was scheduled for July 19 and according to Perez, Dr. Sidorowicz again told him there was nothing in his eye and that it was just an abrasion. Claimant's medical records for that date provide "[left] corneal abrasion - resolved" and indicate that his vision was "normal," and that there was "no inflammation or changes compare[d] to last week['s] evaluation."

Perez recalled that on July 28, he requested medical treatment because he had a sharp pain in his eye and the next day he went to sick call. According to claimant, Dr. Wenzel, an optometrist who periodically comes to Sullivan, was there that day and was asked to examine him. Claimant testified that Dr. Wenzel found something in his eye and proceeded to remove it with a needle. The medical records for that date confirm that Dr. Wenzel noted a foreign body and removed it with a needle.

Perez testified that four months later his vision was tested by an outside doctor who apparently comes to the facility from time to time. It was unclear whether this was Dr. Wenzel or another physician. Perez had apparently requested the examination; his medical records indicate that he was complaining of left eye vision problems. See claimant's exhibit 2. According to Perez, his vision was "blurry" and "down." Claimant asserted that as of July 29, 1999, his vision was "20/20," whereas on November 24, 1999, it was "20/60." The medical reports concerning claimant's vision contain various numerical notations as to claimant's vision, but there is no textual description. See claimant's exhibits 1 and 2. Dr. Sidorowicz, asked to review them, was unable to interpret such findings.

Claimant, who was not wearing glasses at the trial, was asked if he wore them. He responded that "[t]hey gave me some glasses, they broke and I [tried] to get some more but the glasses didn't really help them either," adding later, "[m]y glasses, they broke, I threw them out" early in the year 2000. No medical records or other documentation relating to eyeglasses were offered. Finally, claimant testified that at some point, he was told by a doctor at Coxsackie Correctional Facility that he had glaucoma.
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Doctor Sidorowicz, the first doctor to examine claimant's eye, explained that the foreign body, if any, was very small, he could not tell exactly what it was, and so he was waiting for a doctor more specialized in the field to confirm it. He described the foreign body as a "tiny point on [claimant's] conjunctiva." Dr. Sidorowicz noted that claimant had had a similar injury in 1994 and the doctor was not sure if the point he saw was from the old injury or was actually a new foreign body. Claimant interjected that the earlier injury was outside the pupil, as opposed to on it.

In any event, Dr. Sidorowicz indicated that the treatment given claimant prior to the removal of the object was the treatment that would be given in the case of a foreign body entering the eye: Perez was prescribed an antibiotic in the form of drops to "prevent any complication from [the] foreign body. " Sidorowicz explained that this was a "usual" course of treatment to try to flush out a foreign body; he described the "protocol" as antibiotics along with a recommendation to see a specialist, which recommendation he said he made; contrary to claimant's assertion that he saw the optometrist on July 29 by happenstance, Dr. Sidorowicz testified that a recommendation was required for claimant to be seen. Sidorowicz confirmed that on July 29, two weeks after the sanding machine incident, the optometrist found a tiny foreign body and removed it with no complications.[1]

Dr. Sidorowicz testified that in March 2000, a specialist who saw claimant indicated that it was possible claimant had glaucoma which, according to Dr. Sidorowicz, can affect vision. As to glaucoma itself, Dr. Sidorowicz said it can be caused by many things, including injury. Claimant was seen again by a specialist in May 2000 and no changes were noted, but in December 2000, changes to his left eye were noted and he was prescribed medication for glaucoma.
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As set forth above, Dr. Sidorowicz testified that claimant was properly treated for the foreign body in his eye. Perez offered no expert testimony that accepted standards of medical care were not met or, more specifically, as to the state of his vision or what caused its deterioration, if any. Such expert testimony would be required for him to prevail. See, e.g.,
Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814, 681 NYS2d 475 (1998).
For the foregoing reasons, claim no. 100984 is dismissed.

March 25, 2002
New York, New York

Judge of the Court of Claims

  1. [1]Claimant asserted that optometrists are not permitted to remove objects from the eye, citing Education Law §7101, which provides, inter alia, that the practice of optometry "shall not include any injection or invasive modality." Leaving aside that no damages from Dr. Wenzel's procedure have even been alleged, claimant has not demonstrated that a violation of §7101 occurred, or that such could be shown without expert testimony.