New York State Court of Claims

New York State Court of Claims

NIEVES v. STATE OF NEW YORK, #2002-018-148, Claim No. 101706


After trial, the Court finds that the State's negligence was a substantial factor in reducing claimant's chances for survival if the cancer recurs; requiring a more extensive surgery than might have been necessary; and causing claimant to endure a longer period of pain and suffering.

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:
Defendant's attorney:
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 28, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for defendant's failure to timely diagnose and treat his recurrent cancer while he was an inmate at Mid-State Correctional Facility (hereinafter Mid-State).

In August, 1997, while an inmate at Clinton Correctional Facility claimant had surgery to remove a squamous cell carcinoma from his right nostril area. In September, he was transferred to Groveland Correctional Facility (hereinafter Groveland). He had a follow-up visit with an Ears, Nose and Throat specialist (hereinafter referred to as ENT) on November 18, 1997, who recommended another follow-up appointment in two months.[1]
On January 14, 1998, claimant was transferred from Groveland to Mid-State at which time claimant met with Nurse Carolyn Rorick, who noted claimant's medical history including the recommendation that claimant see an ENT that January. Another nurse, Deborah Bonomo, also noted claimant's need to see an ENT when she audited his file on January 19, 1998. Nothing was done to request an ENT consultation for claimant in January; according to the medical records, claimant was told to go to sick call and request a follow-up ENT visit.
Procedurally, a doctor at the correctional facility must request a consultation with a specialist when an inmate's medical condition warrants it. The request would be reviewed by an HMO and approved or denied. If approved, the medical personnel at the facility schedule an appointment for the inmate. For security reasons, inmates are not notified of their appointment date in advance. The consultant receives a document outlining the reasons the doctor at the facility requested the inmate be seen. The bottom of the same document is used by the consultant to record any findings and recommendations. This document is then returned to the doctor at the correctional facility who oversees the recommended treatment.

On April 30, 1998, claimant went to sick call, complaining to the nurse of bumps growing under his right eye and was referred to the doctor. He was seen the next day by Dr. Haider-Shah who requested an ENT consultation.

The document[2]
requesting the consultation completed on claimant's behalf had two dates in the upper right-hand corner, May 20 and July 8, both were crossed out. (Exhibit 33) According to Dr. Jerry Bartleson, who worked at Mid-State at the time, these were probably appointment dates for claimant with an ENT which, for reasons unknown, could not be kept.
Admittedly, claimant was not seen by an ENT specialist after Dr. Haider-Shah made the request until February 1999. No one reviewed his file to ensure claimant received the follow-up ENT examination. The State stipulated during trial that its failure to have claimant seen by an ENT for a period of 13 months deviated from the standard of care for appropriate medical treatment. The issue is one of causation.

Claimant contends that the lack of follow-up care with a specialist was a substantial factor in causing the following:
  1. A reduction in claimant's chances for survival;
  2. Facial disfigurement;
  3. More extensive surgery on June 2, 1999 than would otherwise
have been necessary

  1. A need for reconstructive surgeries on March 12, 2001 and
July 5, 2001; and

  1. Longer period of pain and suffering and greater likelihood
of pain and suffering in the future

Defendant's position is that despite the delay in claimant's follow-up treatment, claimant would still have experienced a recurrence of cancer in his pari-nasal and sinus area. This recurrent tumor would have required the same extensive surgery and treatment that claimant experienced despite the timing of its detection. Defendant relies, in part, on claimant's apparent lack of symptoms and complaints during the 13-month delay.

Defendant called the nursing administrator to testify, who read various entries in claimant's ambulatory health record. She never saw claimant as a patient, and the entries she read were not made by her. When asked if any entries reflected a complaint by claimant of sinus congestion, she said no. However, there were complaints by claimant of nasal congestion which, according to the defense expert, Dr. Thom Loree, can be a symptom of a recurrent tumor.

Claimant testified that from his first appointment with Dr. Haider-Shah, he repeatedly asked nurses at sick-call visits when he would have his ENT consultation and was repeatedly told that it was pending. No notations were made in his ambulatory health record regarding claimant's inquiries.

Submitted on claimant's direct case were select portions of New York State Department of Correctional Services medical employees' depositions. Included was the testimony of Nurse Bonomo[3]
who recalled treating claimant for nosebleeds while at Mid-State but she gave no dates for the treatment. Before the recurrence was diagnosed, Nurse Robert Wilson saw claimant and testified at his deposition that he saw the tumor and the discharge from claimant's nose.[4]
The bumps under claimant's right eye for which he saw Dr. Haider Shah on May 1, 1998, could have been a symptom of a cancerous recurrence according to all of the doctors' testimony. Dr. Loree, in hindsight, stated he did not believe the bumps were cancerous because such a symptom usually indicates advanced cancer. The Court finds that claimant had symptoms of the recurrence before he saw Dr. Bartleson, on February 12, 1999, the date on which claimant was referred to an ENT.

The determination of liability, specifically the causal connection between the defendant's admitted departure from the standard of care and the claimant's damages, turns upon the testimony of the expert witnesses. There are certain facts and opinions on which both expert witnesses agreed. It was undisputed that claimant suffered from squamous cell cancer, and in August 1997, a tumor was surgically removed from his right nasal passage. Squamous cell cancer, although the most common type found in the head and neck region, is rarely found in the nasal, paranasal and sinus area. The experts agreed that claimant's second tumor was a recurrence of the first, not a new or primary tumor; the first surgery failed to remove the cancer cells and the tumor grew back. Recurrences of this type of cancer occur within the first two years after the initial treatment eighty percent of the time.

Additionally, both experts agreed that treatment of a primary tumor is different from treatment of a recurrent tumor. The goal of surgery in recurrent cancer is to completely remove the tumor and an adequate amount of the surrounding tissue to ensure that no cancer cells remain. After a recurrence, the use of radiation therapy may be part of the treatment. The problem with radiation therapy is it damages healthy tissue and can also delay detecting another recurrence because of the tissue damage.

According to the experts, a staging system for tumors is used in the medical community, although not precise, it provides general guidelines in ascribing certain properties to the tumor. The relevant components of this staging system include the size of the tumor and to some extent, in the sinus area, the anatomic structures which it affects. Claimant's first tumor in 1997 was thought to be a stage T-1 to T-2 although it was not "staged" by the physicians who treated claimant on that occasion. The tumor which is involved here was at least a T-3 stage.[5]
Pursuant to the pathologist's report, claimant's recurrent tumor measured approximately 4 X 8 centimeters[6] when it was removed in June 1999. It had invaded the nasal bone and septum, both nasal passages, and extended from cheek to cheek involving the sinuses. It went as high as claimant's eye socket and down to the palate and base of the skull extending back into his mid-head. There is no evidence that it had metastasized although it destroyed bones and normal boundaries between sinuses and the nasal cavity. The surgical removal of the tumor required an incision from ear to ear in order to access the affected area. As a result, no support was left in claimant's nose; therefore, claimant's nose became deformed.
The experts disagreed on three major points: first, how early the tumor could have been detected; second, whether the treatment, including the extent of the surgery, would have been the same if the tumor had been discovered earlier; and third, whether additional surgery could improve claimant's appearance.

Dr. Carl H. Snyderman, a Board Certificated otolaryngologist (ENT) testified on behalf of claimant. He specializes in head and neck surgery at the University of Pittsburgh Medical Center and is the co-director of the Center for Cranial Based Surgery at the medical center.

Dr. Snyderman agreed that the failure to provide claimant with regular ENT exams as a follow-up to his initial cancer surgery did not meet the standard of care. This failure resulted in a delay in the diagnosis of the recurrence which allowed the tumor to grow larger. This, in turn, required a more extensive surgical procedure to remove it, as well as treatment of a larger area with radiation. It was Dr. Snyderman's opinion, that areas of claimant's head and neck were irradiated beyond what would have been needed if the tumor had been discovered earlier. He also said that due to the size of the tumor, additional surgeries were required for reconstruction and claimant incurred further complications from these surgeries. Dr. Snyderman further believes that the delay resulted in greater morbidity for claimant and treatment side effects. It also resulted in decreased life expectancy.

Morbidity, Dr. Snyderman said, includes complications of treatment such as cosmetic issues (i.e., facial disfigurement), functional issues (i.e., ability to smell and to breathe through the nose), and side effects of radiation (drying of tissue, nerve injuries).

In reviewing the claimant's tumor as depicted in the diagnostic MRI[7]
taken on April 8, 1999, Dr. Snyderman pointed out that the tumor extended almost to the nostril opening. It filled the entire nasal cavity (the breathing passage) and extended up into the sinuses to the base of the skull. It destroyed bone and the boundaries between the sinus and nasal cavities; specifically the bones between the sinuses and skull base, the lateral wall of the nose and the nasal septum.
According to Dr. Snyderman, it took a minimum of four-to-six months and up to a year for the recurrent tumor to grow to the size it was when the MRI was taken in April 1999. Although the doctor could not be sure, he believes the reoccurrence originated from the lateral wall of the right nasal passage.
Dr. Snyderman testified that patients comparable to claimant are regularly seen by an ENT because there is such a high risk of recurrence. Dr. Snyderman acknowledged that there was a range of follow-up care in the medical community, but the standard would include a follow-up visit every one-to-four months by an ENT. These routine ENT examinations involve looking into the nasal cavity with a telescopic[8]
tube. Radiologic studies are also occasionally used, to detect a recurrent cancer on a structure's surface. A tumor of 5 mm (½ cm) would be detectable. In claimant it could be seen early because structures were removed during the first surgery. Dr. Snyderman opined it may have been detectable as early as January 1998, and with regular exams claimant's tumor would have been found before it reached 2 cm in size making it a stage one or two tumor.
Dr. Thom R. Loree testified for the defense. Dr. Loree is Board Certified in surgery and plastic surgery and is chief of the Department of Head and Neck surgery at Roswell Park. It was Dr. Loree's position that tumors in the nasal area are usually detected by symptoms such as nasal drainage or bleeding and airway obstruction.

Dr. Loree testified that squamous cell carcinomas growth rate is consistent in each patient but varies between people. Because the number of cells which were missed in claimant's original surgery are unknown and the speed with which the cells divide is unique to claimant, Dr. Loree testified that, without objective data, there is no way of determining when the recurrent tumor could have been detectable by examination. According to Dr. Loree objective evidence of claimant's recurrent tumor first occurred in January 1999 when claimant complained of nasal stuffiness.[9]
In any event, Dr. Loree said that the treatment approach taken in June 1999 would have been the same even if the recurrence had been found in January 1998.
On cross-examination, Dr. Loree agreed that there are routine screening exams for cancer, and they are performed in order to detect the cancer before it becomes symptomatic. He also agreed that the earlier cancer is detected the better the prognosis, but he did not agree that early diagnosis results in less extensive surgery. He maintained that the extent of surgery is dependent upon the structures which are affected by the tumor; a point on which Dr. Snyderman agrees. However, Dr. Snyderman's position is that the earlier detection would have minimized the structure compromised by the tumor; thereby resulting in a less extensive surgery. Both experts concede that no one can definitively conclude when claimant's tumor would have been detected, and certainly cannot be sure exactly what structures in his face would have been invaded had the tumor been found during an early examination, but the sole reason for this uncertainty is the failure of the State to have follow-up examinations due to its deviation from acceptable, medical standards of treatment. The State, now, is defending this failure on the basis that no one can be sure that claimant's condition would not have resulted in the same surgery with the same bone and structural loss, had it been discovered earlier. This is counter-intuitive and illogical.

Follow-up ENT examinations would have included an endoscopic exam which, as Dr. Snyderman testified would have revealed the tumor well before it reached 1.6 X 3.2 inches in size since claimant had already had extensive surgery to remove the prior tumor. Many of the structures that would normally prevent an ENT specialist from seeing unusual tissue growth had been removed on the right side of claimant's face. Most recurrences are found on the mucosal surface; therefore, it is probable that claimant's tumor would have been seen before it invaded the whole left side of his nasal and sinus area. Since the first cancer was found on that side of claimant's face, by definition, it is where a recurrence would arise.

More difficult to determine is whether or not the nasal septum and bone would have been compromised to the extent that removal would be required, thereby resulting in the facial deformity which claimant has experienced and which required reconstructive surgery. When claimant's second tumor was excised on June 2, 1999, an anterior cranial facial resection was performed. This included a right maxillectomy,[10]
a left subtotal maxillectomy, a subcutaneous rhinectomy[11] with removal of the upper lateral cartilages and nasal septum. Bilateral sphenoidectomies[12] were also performed. To give a patient the best chance of a cure, tissue around a cancerous tumor is removed to prevent recurrences. Throughout the operation, biopsies of the surrounding tissues confirmed the absences of malignancies. Some reconstruction was also performed at this time.
In March 2001, claimant had reconstructive surgery at Bellevue Hospital. It required another ear-to-ear incision. Bone was removed from claimant's skull and grafted to his forehead to replace the nasal bone. Due to an infection, a surgical risk any time, the reconstruction had to be performed again in July 2001. Claimant has an obvious facial deformity despite these reconstruction procedures. The surgeries, according to all of the experts, were adequately performed. The problems claimant has incurred as a result, such as the infection and a change in his appearance, are risks of the surgery or a natural consequence of reconstruction.

The first ENT follow-up after claimant's transfer to Mid-State occurred on February 24, 1999, thirteen months late. At that time, his examination revealed a polyploid tissue in his right nostril and a thickening in his left nostril. This finding also leads to the conclusion that the recurrent tumor grew on the right side and extended into the left side of his nose and face over time. However, the Court cannot conclude that the nasal bone and septum would have remained intact if the claimant had regular ENT follow-ups. In support of this, the Court relies upon the operative procedure report of June 2, 1999,[13]
in which the nasal septum is referred to as the epicenter of the lesion. However, the extent of invasion on the left side of claimant's face would have been limited. As the experts agreed, the earlier a cancerous tumor is found, the better the prognosis. Because of the delay, claimant's prognosis has been worsened. The size and location of the tumor required the removal of a significant amount of tissue and structures. Any new recurrence now will be in or near the eyes, mouth or brain. Claimant will not have an option for surgery and most likely will not survive another bout of cancer. The radiation therapy[14] he received will make it more difficult to detect a recurrence because of the damaged tissue.
Claimant's expert testified that the delay in claimant's treatment also resulted in radiation therapy being applied to claimant's neck and in a more extensive area on each side of his face. In addition, the more extensive radiation treatment that was performed on the left side of claimant's face and which extended back toward his left ear would not have been necessary with earlier detection.

The Court finds the State's negligence was a substantial factor in reducing claimant's chances for survival if the cancer recurs; requiring a more extensive surgery on June 2, 1999, and causing him to endure a longer period of pain and suffering. However, the Court also finds that the nasal septum and bone would have been removed even without the delay in detection.

The claimant has been damaged by the State's negligence and the Court hereby awards claimant SIXTY THOUSAND DOLLARS ($60,000) for past pain and suffering and ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000) for future pain and suffering. It is agreed that to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11a(2).


June 28, 2002
Syracuse, New York

Judge of the Court of Claims

[1]See Exhibit 19; Ambulatory Health Record.
[2]Exhibit 33
[3]Exhibit 25
[4]Exhibit 24
[5]Claimant's expert placed it between 3 and 4; defendant's expert at stage 3.
[6]This is roughly 1.6 x 3.2 inches.
[7]Exhibits 31and 32.
[9]The claimant's ambulatory health record contains a complaint of nasal stuffiness on October 5, 1998, which Dr. Loree may have forgotten. He agreed that this complaint could be a symptom of the recurrence.
[10]Is defined as resection of the maxilla, an irregularly shaped bone supporting the superior teeth and partially forming the orbit, hard palette and nasal cavity. (Stedman's Medical Dictionary, 1070 (26th ed.1995)
[11]Removal of the nose (Id, at 542, 1544)
[12]Removal of the sphenoid bone, a bone of irregular shape, occupying the base of the skull. (Id, at 223, 542)
[13]This is part of Exhibit 19
[14]The Court does not find that this treatment was inappropriate, but does find the State's negligence resulted in a greater area being radiated.