New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2003-016-072, Claim No. 104917


Synopsis


Inmate's claim alleging that doctor at Sullivan Correctional Facility injured his ear while removing wax was dismissed.

Case Information

UID:
2003-016-072
Claimant(s):
LESLIE PEREZ
Claimant short name:
PEREZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104917
Motion number(s):

Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Leslie Perez
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph Romani, Esq., AAG
Third-party defendant's attorney:

Signature date:
September 18, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is the claim of Leslie Perez, which was tried at Sullivan Correctional Facility. Mr. Perez alleges that a physician at Sullivan injured his ear while cleaning it. Perez' claim, as filed, contained allegations that he suffered a hearing loss in connection with the ear injury, but at trial, he withdrew such aspect of his claim.

On the morning of October 4, 1999, claimant went to Sullivan's medical facility for a physical examination by Dr. Wladyslaw Sidorowicz, during which the doctor cleaned wax from his ear. Claimant recalled that to remove the wax, Dr. Sidorowicz went "deep in" his ear and told him there would be pressure. Perez testified that after the exam, he returned to his cell and later that afternoon, realized that his ear had begun bleeding, upon which he went to emergency sick call. Claimant's medical records state that when he went to sick call, he was bleeding from the left ear, that cotton with Bacitracin was placed in his ear, and that he was to be seen by the doctor in the morning. See claimant's exhibit 3.

Perez stated that he went to sick call over a two-month period and that he should have been seen again after that, but he did not elaborate. Perez contends that at the time he went for the physical examination, he had been complaining of an unrelated eye injury and he believes that this "irritated" Dr. Sidorowicz such that he used "too much pressure." He also contends that Sullivan personnel engaged in a "coverup" following the injury.

After the incident, Perez filed a grievance, which was "unanimously denied" and which states in relevant part that:
. . . a large chunk of wax was removed from the grievant's ear using a specially designed curette. This procedure was accomplished by medical personnel without incident and the grievant was released.
. . . on 10/5/99 the grievant was again seen by medical staff complaining of bleeding from his ear. Upon examination it was noted that the bleeding was proximal to the wax removal with no evidence of infection noted. The grievant was treated and once again advised not to self-manipulate the ear. Additionally, blood tests were ordered to rule out any bleeding disorder.
[Central Office Review Committee] advises the grievant to continue to address his medical concerns through sick call. Contrary to the grievant's assertions, [the committee] has not been presented with sufficient evidence to substantiate any malfeasance by the employees referenced in this instant complaint. . .

See Claimant's exhibit 2. On cross-examination, claimant denied that he had manipulated his own ear after it had been cleaned.
Dr. Wladyslaw Sidorowicz testified that he is the medical director at Sullivan and stated that he recognized Perez, having treated him many times. He testified that he performed the medical exam on claimant on October 4, 1999 and found a piece of wax in claimant's ear which he recommended be removed, as wax can cause infection and hearing loss. He testified that he did in fact clean Perez' ear, using an appropriate amount of pressure.

Dr. Sidorowicz recalled that later that evening, he received a call from the nurse that there was "severe bleeding" in claimant's ear. He said that claimant was prescribed ear drops with an antibiotic to prevent infection. The next morning, Dr. Sidorowicz examined Perez and saw an injury to his ear canal. Sidorowicz recalled that such injury was near – but not at – the site where he had removed wax from Perez' ear. He described the injured area as a "huge" abraded area and testified that it could not have been caused by the instrument he used to clean claimant's ear.[1]
On cross-examination, claimant asked the doctor whether it was possible that when he removed the wax, he "ripped off" tissue from the abraded area. Sidorowicz responded that such would be possible only if the wax was very dry, and that in Perez' case, the wax, which was less than one year old, had been softened by drops prior to its removal. Claimant testified that he did not recall any drops being used to soften the wax prior to its removal.
Finally, Sidorowicz stated that Perez complained of a lot of pain and also a loss of hearing when he was seen on October 5, 1999. Sidorowicz testified that a loss of hearing would not be related to either the cleaned area or the abraded area.
* * *
I find that Perez has failed to prove by a preponderance of the evidence that Dr. Sidorowicz caused the abrasion in his ear. Moreover, in order for him to prevail in this case, he would have to present expert testimony that accepted standards of medical care were not met. See, e.g.,
Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814, 681 NYS2d 475 (1998). He has failed to present such testimony. In view of the foregoing, claim no. 104917 is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.


September 18, 2003
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]Sidorowicz testified that he had cleaned claimant's ear with a stainless steel curette with a tiny loop. Claimant recalled the instrument as a "Q-tip" like instrument with a "long wooden handle" and a cotton end.