New York State Court of Claims

New York State Court of Claims

WADE v. THE STATE OF NEW YORK, #2002-030-003, Claim No. 98886


Pro-se inmate's claim of ministerial neglect dismissed. No showing that actions of medical care givers were negligent, in their treatment of claimant's nasal polyps. Not a case where it can be readily determined, in the absence of expert medical testimony, whether any alleged delay in treatment caused damage which would not otherwise have been occasioned by the disease process

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:
Third-party defendant's attorney:

Signature date:
February 7, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Ronnie Wade, the Claimant herein, alleges in Claim Number 98886 that the Defendant's agents were negligent in not providing medical care to him while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing), as well as at Wallkill Correctional Facility (hereafter Wallkill) and Sullivan Correctional Facility (hereafter Sullivan). Trial of the matter was held on December 5, 2001.

Claimant relied upon the factual allegations contained in his claim, his own testimony at trial, the testimony of Dr. Susan Mueller, and certain documentary evidence. He indicated that between the years "1991 through 1994 ...[he] complained to the medical department"[1]
about nasal problems, and was given only over-the-counter medication. He stated that in January, 1994 he was "diagnosed by the State doctors at Sing Sing as having suffered a ruptured nasal polyp" and was "referred to the ENT specialist at St. Agnes Hospital for a consult."
The report from St. Agnes Hospital concerning the consultation - which took place on May 6, 1994 - indicates in the "Assessment" portion that Claimant had a "nasal polyp...[right] (illegible)" and "allergic rhinosis." [Claimant's Exhibit "2"]. The "Recommendations/Plans" portion indicates: "(1)Beconase AQ...[3] puffs each nari bid x 3 mos (2) Claritin 10...[milligrams] 1 po Q...[day] x 3 mos (3) Medral dose pack x 1 (4) ...[return] ENT 3 mos." [
Ibid.] Upon his return to Sing Sing after the consultation, the facility physician partially implemented two of the recommendations, as evidenced in the Claimant's Ambulatory Health Record (hereafter AHR) for the day of his return. [Claimant's Exhibit "3"]. The Beconase nasal spray was ordered, and some modified amount of decongestant was ordered as well. [Id.] Claimant testified it took "four years" before he was returned to an ENT clinic, when he should have been returned within ninety (90) days as recommended. Additionally, he said the "denial of the medral dose pack....used to help shrink the polyp for removal" caused him additional damage.
During the next four years after the May, 1994, consult the Claimant asserts he kept complaining to "various medical Sing Sing...Sullivan....and regard to the ruptured nasal polyp which would bleed, intermittently, when the Claimant blew his nose." In 1998, when the Claimant "was finally returned to an ENT clinic,...a CAT scan was immediately ordered." Claimant asserted that the Defendant "failed to follow its own administrative protocols" and, as shown in the CAT scan, that failure was the proximate cause of Claimant's injuries.

As shown in Claimant's AHR, the second ENT consult was conducted on or about March 24, 1998,. [Claimant's Exhibit "9"]. A CAT scan was ordered at that time. An additional ENT consultation was conducted on June 10, 1998, and surgery was recommended. [Claimant's Exhibit "11"]. The surgery was performed on August 3, 1998 [
Ibid.], with the Claimant returning to Wallkill on August 4, 1998. [Defendant's Exhibit "A"]. Although the AHR indicates otherwise,[2] Claimant testified that he has had "no sinus or allergy problems since." He did not indicate that he suffers from any present injury or pain today.
Dr. Susan Mueller, the Medical Services Director at Wallkill since 1999, also testified at length. She indicated she is a Board Certified General Surgeon. The witness had been employed as a physician with the New York State Department of Correctional Services (hereafter DOCS) since June 10, 1993. Her assignment to Wallkill began in May, 1997, and was preceded by assignment to Sullivan. In Wallkill and Sullivan, she had both examined the Claimant, and prescribed certain medications, on occasion.

On or about July 13, 1994 Claimant was drafted to Sullivan, one month before a follow- up visit to the ENT clinic had been recommended. Dr. Mueller was a part-time physician at Sullivan at the time. She testified that when a "new draft" first enters the facility, it is generally at night when no doctors are present. They are first "assessed by the nursing staff, and any chronic medications they are presently on at the time of transfer are continued...the verbal order for such is given by the doctor ‘on call' that night." She did not conduct a physical examination of Claimant, although he was physically examined by medical personnel as a "new draft."

According to the AHR for July 18, 1994, she prescribed the Beconase nasal spray, and decongestants. No medral dose pack was ordered. She testified that such an item is used only for a certain period. In his case, if he had "been on it in May, ...[he] would not still be on it in is not a ‘chronic' medication." If there is an outstanding request for a consultation - such as the notation that a follow-up in three months was required - "the need for it would be reviewed by the physician...usually the facility Health Services Director...who, at the time, was Dr. Sidorowicz....According to the record [for August 17, 1994], it was determined that no ENT consult was required....Dr. Sidorowicz wanted to see the patient again in two months." [
See, Claimant's Exhibit "4"]. "...[Chronic] allergic rhinitis" is noted, his nose was examined, and medication was "continued." [Id.]
Dr. Sidorowicz saw him on September 28, 1994 - earlier than the proposed follow-up - with the request that his rhinitis be evaluated. [Defendant's Exhibit "A"]. The physician conducted a physical exam, and continued Claimant's medication. He was seen by Dr. Sidorowicz on October 12, 1994 as "...[follow-up] to 8/17, no heavy lifting permit." [
Ibid.] Claimant was physically examined, and a decongestant, a nasal spray noted as "Vancenase"[3], and Tylenol were ordered. A prescription renewal by Dr. Sidorowicz is noted on November 21, 1994. [Ibid.]
Claimant's complaints of a "stuffy nose" are next noted on the AHR for March 2, 1995.[4]
Thereafter, Claimant missed at least two scheduled appointments with the physician. On March 31, 1995 Dr. Sidorowicz noted in the AHR, as interpreted by Dr. Mueller : "...[Chronic] allergic rhinitis for years...[physical exam of] ears...[negative;] nose:...[bilateral] edema...[without] discharge,...[without] bleeding...[continue] meds as per ENT...No need for...[surgery]."
Dr. Mueller examined the Claimant for the first time at Sullivan on August 7, 1995. Her AHR notes indicate, as interpreted by her testimony, that the Claimant's subjective complaints were of "nasal polyps...nasal congestion." He reported that the "polyp comes out of right nostril and bleeds intermittently - he pushes it back. He stated meds not helping and would like to see ENT again (see consult 5/94 & AHR 3/31/95)." Her findings were: "no polyps visualized; mucosa extremely inflamed; positive congestion." From her inability to "visualize polyps", she testified, it seemed the "polyps were obviously responding favorably to the medical treatment." She ordered some medication, and referred Claimant for an appointment with Dr. Sidorowicz "for a final determination because Dr. Sidorowicz had seen Claimant four times previously for the same problem, and he was the Facility Health Services Director."

"Polyps", she testified, may "not be there [on a given occasion] even though one had been sighted a year earlier. Most polyps are treated with medical therapy. It's only upon failure of medical therapy that surgery becomes necessary." After her August 7, 1995 examination, "no surgery was recommended" by her "because it appeared the medications were working, and, procedurally, because he was being followed by another physician, who then saw him four days later." Her diagnosis of Claimant at the time was "chronic sinusitis and exacerbation of his chronic sinusitis - treated usually with inter nasal steroid sprays, decongestant medication and, if bacterial sinusitis, a short course of antibiotics...In an extreme case, it can be treated with oral steroids for a short course."

When Dr. Sidorowicz saw Claimant on August 11, 1995, medical therapy was again ordered, and no referral was made to an ENT clinic.

On or about September 19, 1995 Claimant was transferred to Woodbourne Correctional Facility (hereafter Woodbourne). Between that date, and August, 1996[5]
, there is no indication in the AHR that the Claimant sought medical help for any complaints about his nose or sinuses.
On August 2, 1996 the AHR indicates Claimant requested allergy prescription renewals, and wanted to see a doctor for such prescriptions. These requests appear incidental to primary complaints about other unrelated injuries. In November, 1996, he sought help for "allergic rhinitis."[6]
Medication was prescribed, which was then refused by Claimant when it arrived on December 8, 1996.
On February 13, 1997 Claimant complained of "allergies" and "sinus congestion & headaches...[for 3 days, and a] polyp in the nose. [He]refused Sudafed, stat[ing]...they don't work." Other kinds of medication were prescribed. Later that month more "Vancenese" nasal spray was ordered, as was "Entex."[7]
On March 24 and 26, 1997 the AHR indicates Claimant was seen and examined complaining of headache and nasal congestion. The somewhat illegible notes seem to indicate that there was congestion found, and no redness. Pain medication and decongestants were ordered.
The next visit to medical personnel at his request is in late May, 1997.[8]
Dr. Mueller, who had joined the Wallkill staff by then, examined him on May 30, 1997. She said that on the "previous day, Claimant had come to sick call with complaints of left knee pain, as well as a request for more nasal spray." She noted that he reported he was "presently congested and had taken Vancanese and Sudafed with good results in the past," so she ordered it. As a physician, it is her practice to note "pertinent positives" in the AHR. It would not be the normal practice to "list all the negatives." Thus, she testified, if she had observed any polyps on that date she would have noted it.
Dr. Mueller reiterated that surgery is only indicated as a last resort. On May 30, 1997 "no polyps were visualized, he appeared to be responding to the medication, and the intermittent congestion over several years was consistent with a diagnosis of chronic sinusitis/rhinitis." She said: "people usually have these conditions for life." The "frontline treatment for polyps is medical therapy."

She saw him again on July 2, 1997, when he complained of "exacerbation of chronic allergic rhinitis...[with increased] congestion." She increased the number of puffs of nasal spray he was to use daily. It was not until October 17, 1997 that she again examined him as initiated by his complaints to medical personnel. She testified that a nurse examined him first, and he was then referred to Dr. Mueller for her to prescribe the "treatment plan [that] worked well." Nasal spray, decongestant and an antibiotic apparently were prescribed.

By October 31, 1997, the Claimant sought intervention stating he was "very congested [and the] recent course of...[treatment] did not help." He was seen by Dr. Mueller on that date, who prescribed Sudafed and directed the "return of Vancanese" inhaler to Claimant. She testified that at that juncture surgery was not indicated. Despite her "leanings toward surgery" because she "is a surgeon, surgery is always a last resort, after a failure of medical therapy." She said surgery always has risks, and the type of surgery ultimately performed on Claimant had the "risk of meningitis, spinal fluid leak, blood clots and infection. Medication," she stated, " can shrink - and can also result in the complete resolution of a polyp."

In November, 1997, after being seen by a nurse, Claimant did not show up for sick call with the doctor. By December 22, 1997 the examining physician's notes in the AHR indicate for the first time more recently, that there is a right "nasal polyp," and refers the Claimant for a sinus x-ray and an ENT consult. On January 5, 1998 the sinus x-rays were interpreted as "mild bilateral maxillary sinus mucosa thickening." Thereafter, the ENT consult held on March 24, 1998 recommended a CAT scan.[Claimant's Exhibit "9"]. Dr. Mueller testified that the April, 1998 CAT scan "demonstrated significant disease of the sinuses." [Claimant's Exhibit "10"] The CAT scan notes in pertinent part: " The nasal passageways are almost completely filled in their mid and superior components, almost certainly by polyps..." [Id.] This result generated another ENT consult on June 10, 1998, where surgery was recommended. [Claimant's Exhibit "11"]

Thereafter, and as noted above, surgery - called "functional endoscopic sinus surgery (FESS) with polypectomy and anterior ethmoidectomy" - was performed on August 3, 1998.

Dr. Mueller was also able to shed light on terminology used in the DOCS forms, notations by medical personnel, and practices by medical personnel within the facility. She said that any time medication is prescribed to an inmate, a notation is required in his medical records, except for prescriptions for over-the-counter drugs. When a "consultation comes back, the reviewing physician is not required to list the consult's recommendations in the AHR....The facility's reviewing physician initials and dates the bottom right hand corner of the Consult Form, signifying that he has seen and reviewed it....[After such review], if certain things need to be done, or ordered, on the basis of their review, then it is noted in the AHR...."

Dr. Mueller explained that the recommendations made by consulted specialists are just that: recommendations. The facility physician exercises independent medical judgment on whether to implement those suggested courses of treatment, based upon his "knowledge of the patient and the best interest of the patient." If a consultant's recommendation is not followed, it does not need to be recorded in the AHR. Thus, she explained, the fact that the entries in the AHR record some consultation recommendations (i.e.: the suggested return to the ENT clinic three months from the May, 1994 visit), and not others (i.e.: the medral dose pack), is not remarkable. A review of the balance of the entries, she testified, indicates that there were medical determinations that a return to an ENT clinic was unnecessary given the apparent control of the patient's multiple conditions with the already prescribed medication.

She testified that the "subjective" portion of an AHR entry is where the patient's concerns are noted, as well as his recitation of his history. "History", she said, "is what a patient tells doesn't necessarily mean it will be borne out by physical examination." The "objective" portion notes any observations made by medical personnel; and the "assessment/plan" portion records the course of treatment proposed. Any medications requiring a prescription are noted in the "meds ordered" section.

The Court has also reviewed Claimant's exhibits "5", "6" and "12" through "14", which appear to be copies of various portions of the DOCS Health Services Policy Manual, with varying effective dates.

It is "fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons," including proper diagnosis and treatment.
Rivers v State of New York, 159 AD2d 788, 789 (3d Dept. 1990), lv denied , 76 NY2d 701 (1990).
In a medical malpractice claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A Claimant must establish that the medical care giver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. The "‘claimant must [demonstrate] that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his...injuries' (
Parker v State of New York, 242 AD2d 785, 786...)." Auger v State of New York, 263 AD2d 929, 931 (3d Dept. 1999). Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept. 1976), lv denied, 40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).
If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State's employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony.
Coursen v New York Hospital-Cornell Medical Center, 114 AD2d 254, 256 (1st Dept. 1986). Similarly, the State may be found liable for ministerial neglect if its employees fail to comply with an institution's own administrative procedures and protocols for dispensing medical care to inmates, Kagan v State of New York, 221 AD2d 7,10 (2d Dept 1996), assuming any failure to follow its protocols caused injury.
In this case, only the testimony of the Claimant has been presented in support of any claim of malpractice. No competent medical evidence was presented, through a treating physician or an expert witness whose opinion was based upon the available medical records, to support the allegation of medical malpractice. What evidence there was on medical issues was presented by Dr. Mueller, subpoenaed by Claimant as a "fact" witness. (See, Decision dated September 29, 2001, Scuccimarra, J., M-64056-64057). Her testimony confirmed that throughout the period of alleged misfeasance Claimant was seen regularly by medical personnel who exercised medical judgments - we do not know of what quality - to determine his course of treatment. There is thus no proof that accepted standards of care were not met. Accordingly, any claim of medical malpractice is not supported by the evidence.

With respect to a claim of simple negligence - the allegation Claimant urged as his primary focus - there has been no indication that the actions of medical care givers amounted to ministerial neglect.
See, Coursen v New York Hospital, supra.; Kagan v State of New York, supra. Whether, and to what degree, earlier consultations with the ENT clinic might have alleviated some of the Claimant's past pain is not discernable on this record. This is not a case where it can be readily determined without expert testimony what type of care this Claimant should have received, and whether any alleged delay in receiving treatment - even in contravention of administrative protocols - caused damage which would not otherwise have been occasioned by the disease process. In any event, it does not appear that DOCS failed to follow its protocols. Accordingly, any claims based upon medical negligence or ministerial neglect are not established either.
The medical records and the credible testimony of Dr. Mueller show that this Claimant obtained regular care, from a variety of medical personnel, but it does not show that the course of treatment prescribed based upon the operating diagnoses of chronic rhinitis, sinusitis and polyps, deviated from some measurable standard of care, and that any deviation caused this Claimant actionable injury.

Defendant's motion to dismiss, upon which decision was reserved at trial is granted. Accordingly, Claim Number 98886 is hereby dismissed in its entirety.

Let judgement be entered accordingly.

February 7, 2002
White Plains, New York

Judge of the Court of Claims

[1]All quotations are to trial notes or audiotapes unless otherwise indicated.
[2]See, AHR for October 15, 1998, January 15, 1999, June 24, 1999, January 20, 2000, May 16, 2000.
[3] Throughout the medical record nasal sprays are noted as either "Beconase," "Vancanese" or "Vancenase" - the Court is unaware whether these are different spellings of the same medication or different medications entirely.
[4] "Stuffy nose", "nasal problems" and "c/o nasal difficulties" also noted in March 9,10,16, 28, 1995 AHR entries.
[5]On April 19, 1996 Claimant had been transferred from Woodbourne to Wallkill.
[6]AHR November 26, 1996.
[7]AHR February 26, 1997.
[8]AHR May 29, 1997.