This timely filed claim alleges medical malpractice, breach of ministerial duty
and negligence by the defendant at Fishkill Correctional
Claimant testified that on August 22, 1997, while exercising in the Fishkill
Correctional Facility (hereinafter Fishkill) yard, he heard a popping sound in
his left ear followed by loss of hearing. He requested permission to see a
doctor but a correction officer told him to go to his cell and rest. At about
1:00 a.m. the following morning he was taken to the facility clinic where he was
evaluated by a nurse. He complained of dizziness, nausea and loss of hearing in
his left ear. The Ambulatory Health Record Notes indicate the nurse examined
claimant's left ear and notified a physician's assistant but that no treatment
or medication was given. Claimant was told to go to sick call on Monday, August
25 or return to the clinic if his symptoms persisted (Exhibit 23, Page 62).
Later that morning, at 10:45 a.m., a sergeant requested medical attention for
claimant because of his dizziness, nausea and vomiting. A physician's assistant
prescribed Vistaril, an anti-anxiety medication (Exhibit 23, Page 63).
On August 25, 2003 Dr. John Francis, the facility physician, examined claimant,
documented the sudden hearing loss while exercising, his tinnitus (ringing in
ears) and dizziness. He noted a positive Romberg
He diagnosed "sensory hearing loss", prescribed Meclizine (an anti-nausea
medication) and ordered an ear, nose and throat (hereinafter ENT) consultation
(Exhibit 23, Page 63). Mr. Dickerson waited 26 days for this consultation. He
was seen by an ENT specialist on September 19, 1997 (Exhibit 23, Page 97). The
specialist ordered an audiogram, an MRI and a follow-up visit in two weeks
(Exhibit 23, Page 97). Although the ENT report was initialed by Dr. Ivan
and sent to Dr. Francis, who also
initialed it (see Exhibit 23, Page 97), the MRI and audiogram were not requested
by Dr. Francis until November 12, 1997 (see Exhibit 23, Pages 98 and 99). Dr.
Francis referred claimant back to the ENT specialist on November 21, 1997 but he
was not seen by the specialist until January 9, 1998 (see Exhibit 23, Page 100),
some 4½ months after the onset of his symptoms.
Dr. Mikler was called as a witness by claimant. He stated that he is a retired
physician who practiced Internal Medicine for over 40 years and worked for the
Department of Correctional Services for 11½ years. During the years 1997
and 1998 he was the Medical Director at Fishkill. Dr. Mikler testified that Dr.
Francis had the authority to send claimant to an emergency room and should have
done so in this case. He stated that in his opinion the delays in diagnosis and
treatment were inappropriate. Dr. Mikler also testified that Dr. Francis had
responsibility for implementing the specialist's recommendations and to arrange
for tests and a return clinic visit, as ordered.
Prison procedures provide that an inmate who goes to sick call with the same
unresolved problem three times must be referred to a physician's assistant,
nurse practitioner or physician. Dr. Mikler stated that when a nurse at sick
call refers a patient to a doctor, the patient should be seen within 72 hours of
the referral (see Exhibit 2, Page 2).
Robert J. Ruben, M.D., testified on claimant's behalf. Dr. Ruben is a
specialist in Otolaryngology.
Claimant offered the doctor as an expert witness in this field and the Court
accepted him as an expert
Dr. Ruben testified that the sudden total loss of hearing while exercising and
claimant's other symptoms of dizziness, nausea and vertigo constituted a classic
presentation of a likely perilymphatic fistula and that this presumptive
diagnosis is accurate 90% of the time. In fact, it is so classic that it is
included on ENT board certification examinations which the witness stated he has
consulted in developing. Dr. Ruben testified that a perilymphatic fistula is an
opening in the structure of the inner ear (see Exhibit 53). The fistula allows
fluid which keeps cells necessary for hearing and balance healthy to escape and
the cells begin to die. He stated that the body does not regenerate cells of
this type and if treatment is delayed, the damage to hearing and balance is
irreversible. He opined that a delay of several weeks creates a medical
certainty that the patient will not recover.
Dr. Ruben also stated that a general practice physician would not necessarily
know of the presence of the perilymphatic fistula but should have sent claimant
to an ENT specialist within 72 hours because of the asserted sudden hearing
loss. He opined that the failure of Dr. Francis to send claimant to an ENT
specialist within this period was a departure from the accepted standard of
Dr. Ruben testified that there remained a chance for restoration of hearing and
balance (albeit strongly reduced) if Mr. Dickerson had received treatment by
returning to the ENT clinic in two weeks with the test results as ordered. He
also testified that the ENT specialist, under contract with the State of New
York, breached the standard of care by not recognizing the perilymphatic
fistula. He testified that the ENT specialist also erred by ordering an MRI
instead of a CT scan (which is of greater diagnostic value for this condition)
and that his ordering of tests to rule out syphilis had been outdated for this
presentation for at least 40 years.
Regardless of the ENT specialist's failings, Dr. Ruben testified that the
3½ months' delay in the return visit, attributable to Dr. Francis' failure
to initiate the paperwork for the tests for almost two months, breached the
standard of care. Mr. Dickerson is left with an irreversible condition which
was avoidable in whole or in part to a reasonable degree of medical certainty.
Dr. Ruben characterized claimant's problem as an "otologic surgical emergency"
(Exhibit 48). If treated promptly, at least half of all patients recover
hearing and 95% have cessation of vestibular symptoms. In the doctor's opinion,
claimant "was not given the opportunity of the appropriate care" (Exhibit 48,
After reviewing the entire medical record and history, Dr. Ruben testified that
Mr. Dickerson's hearing loss, dizziness and balance problems were proximately
caused by the failures in his diagnosis and treatment. They are not
attributable to claimant's asthma, sinus problems, prior gunshot wound or
laminectomy. Defendant offered no expert testimony to the contrary.
Sandra Gordon-Salant, Ph.D., testified on claimant's behalf. Dr.
Gordon-Salant is a Professor of Audiology at the University of Maryland and was
offered by claimant as an expert in the field of Audiology. The State had no
objection and the Court accepted the doctor as an expert in this
Dr. Gordon-Salant testified that she has reviewed claimant's medical record and
concluded that claimant has a profound
loss in his left ear.
Dr. Gordon-Salant testified that unilateral hearing loss makes it difficult for
the patient to understand spoken words, particularly in noisy environments. It
also results in an inability to localize sound. Mr. Dickerson's testimony that
he can no longer tell from which direction noise is coming was corroborated
scientifically by Dr. Gordon-Salant. The witness opined that this risks an
inability to protect oneself from danger when a warning signal is misinterpreted
and the person moves into harm's way instead of out of it.
Mr. Dickerson was given a hearing aid, but it is of no value to his totally
non-functioning ear. He has a CROS
hearing aid which transmits signals from the bad ear to the good ear through a
wire. Both experts agreed that it is of some small value in quiet situations,
but of no benefit in noisy situations, such as a prison mess hall or a factory.
Dr. Francis himself wrote that it was "completely useless in noisy
environments", as did a nurse (Exhibit 23 at Page 83). It also does nothing to
alleviate claimant's localization problems for sounds or to remedy his dizziness
The evidence established that claimant was removed from two prison jobs (food
services and building maintenance) because of his hearing problem (see Exhibit
24, Page 21 and Exhibit 39, Page 1). In addition, claimant testified that he
was disciplined for a violation of prison rules when he failed to obey a direct
order which he did not hear.
Dr. Gordon-Salant testified that, while patients sometimes try to fake hearing
loss, audiologists can determine whether the hearing loss is genuine. If, as
here, the response to pure tone signals is very similar to the response to
spoken signals, the correlation indicates that the data is reliable. More
concretely, the acoustical reflex tests, which measure involuntary physical
response to sound, showed that response was present in the right (good) ear but
absent in the left (deaf) ear (see Exhibit 26). This response cannot be faked
and is medically dispositive.
As claimant's hearing loss is permanent, his employment prospects after his
release from prison are limited by the hearing loss and his balance
The State is obliged to provide the inmates of its correctional facilities with
reasonable and adequate medical treatment (
Mullally v State of New York
, 289 AD2d 308; Rivers v State of New
, 159 AD2d 788, 789, lv denied
76 NY2d 701; Gordon v City of
, 120 AD2d 562, affd
70 NY2d 839; see also, Powlowski v
, 102 AD2d 575, 587). An action for injuries sustained while under
the care of a medical professional or a facility may be premised upon a theory
of simple negligence, ministerial neglect or medical malpractice (Hale v
State of New York
, 53 AD2d 1025, lv denied
40 NY2d 804; Kagan v
State of New York
, 221 AD2d 7). An action may be premised upon simple
negligence in cases where the alleged negligence can readily be determined by
the trier of fact upon common knowledge. Where it is the treatment received by
the patient that is in issue, however, the case is premised upon medical
malpractice and a claimant must establish that the medical professional involved
either did not possess or did not use reasonable care or his/her best judgment
in applying the knowledge and skill ordinarily possessed by practitioners in the
field (Hale v State of New York
, 53 AD2d 1025, lv denied
; Pike v Honsinger
, 155 NY 201). The proof required in
such a case includes the accepted medical standards of care in the community in
which the medical professional practices (Toth v Community Hosp. at Glen
, 22 NY2d 255) and a deviation or departure from those standards
(Kletnieks v Brookhaven Mem. Assn.
, 53 AD2d 169, 176). The practitioner
is not required to achieve success in every case and cannot be held liable for
mere errors of professional judgment (Pike v Honsinger
, 155 NY 201,
; DuBois v Decker
, 130 NY 325). The " ‘line between
medical judgment and deviation from good medical practice is not easy to
draw...' " (Schrempf v State of New York
, 66 NY2d 289, 295 quoting
Topel v Long Is. Jewish Med. Center
, 55 NY2d 682, 684). "However,
liability can ensue if [the physician's] judgment is not based upon intelligence
and thus there is a failure to exercise any professional judgment" (Pigno v
, 43 AD2d 718).
Based upon the uncontroverted testimony of Dr. Ruben, claimant has established
by a preponderance of the credible evidence that defendant's employee, Dr. John
Francis, did not possess or did not use reasonable care or his best judgment in
applying his knowledge or skill in his treatment of claimant in August 1997 in
failing to send claimant to an ENT specialist within 72 hours of claimant's
hearing loss. The expert's uncontroverted opinion (with which Dr. Mikler
reluctantly agreed) was that this was a departure from the accepted standard of
medical care. Further, even though the claimant's specific condition was not
within the knowledge of a primary care physician, claimant's presenting
symptomology should have been recognized as requiring more aggressive action in
getting an ENT consultation in a timely manner.
Claimant also asserts that the ENT specialist failed to meet the accepted
standard of medical care. However, such malpractice is not attributable to the
State since the ENT specialist was an independent contractor, not a State
Rivers v State of New York
, 159 AD2d 788, lv denied
It is the State's duty to render medical care "without undue delay" and
therefore, when "delays in diagnosis and/or treatment [are] a proximate or
aggravating cause of [a] claimed injury", the State may be liable (
Marchione v State of New York
, 194 AD2d 851, 855). In Stanback v
State of New York
(163 AD2d 298), the failure to promptly and correctly
diagnose an inmate's injured knee resulted in an unreasonable delay of
treatment. There, the Court stated "these acts and omissions amount to
something more than an honest error in professional judgment" (Stanback v
State of New York
, 163 AD2d 298, supra
). The same can be said of the
failure of Dr. Francis to carry out the orders of the ENT specialist to have an
MRI and audiogram performed in a timely manner and to return claimant to the ENT
specialist in two weeks.
The evidence adduced at trial failed to establish that claimant suffered a
great deal of pain in his left ear as a result of the defendant's negligence.
However, vertigo and nausea, which were present throughout, are quite
uncomfortable. The Court also finds that the impairment of future employability
and the suffering he will endure in being able to hear from only one ear is
substantial. The evidence established that claimant's hearing loss makes it
difficult for him to understand spoken words, especially in noisy environments.
He has an inability to directionally locate sound and will have dizziness and
balance problems for the rest of his life. In addition, claimant now has a
greater risk of damage to his good ear and also of suffering from meningitis
because of the abnormal fluid flow in the anatomical structures of the skull and
Dr. Gordon-Salant's testimony established that hearing declines as people age
and that this is of particular concern when one ear does not function. She
compared claimant's audiograms of 1997 and 2002 (Exhibit 26 and Exhibit 25, Page
16) and found a decrease in hearing in his good ear in the five-year period
between the studies that exceeds normal deviation between tests. In short, the
hearing he has left is getting worse. Dr. Gordon-Salant testified that a
patient in Mr. Dickerson's situation should be audiologically evaluated
annually, but based upon her review of his records, this has not occurred.
Mr. Dickerson's hearing aid does not ameliorate his hearing loss, particularly
in noisy environments. Further, it does nothing about his dizziness and balance
loss. He has also had persistent problems with the functioning of this device
and its timely provision to him.
Mr. Dickerson's first hearing aid was delayed for months. He finally received
it in September 1998, 13 months after his hearing loss, and it did not fit
(Exhibit 23, Page 72). By November 1999 it was causing sores in his ear
(Exhibit 23, Page 80) and in the Spring of 2000 it was noted to be defective
three times (Exhibit 23, Page 83). He finally received a new hearing aid in
April 2001 (Exhibit 24, Page 14), 17 months after the problem was identified.
During this interval, he could either use the old device, which caused abrasions
in his ear (Exhibit 23, Page 80), or forfeit the benefit it gave him.
In determining future damages, the Court has taken judicial notice of 1B PJI
3d, Page 1495 which indicates that a 39 year old man has a life expectancy of
37.1 more years. The Court finds that claimant is entitled to $50,000 for past
pain and suffering resulting from defendant's negligence and that he is entitled
to $250,000 for future suffering, impairment of future employability and the
many other avoidable consequences that he will suffer because of his permanent
In accordance with the foregoing, claimant is awarded $300,000. All motions
made at trial, upon which the Court reserved decision, are now denied. The
Clerk of the Court is directed to enter judgment accordingly.