New York State Court of Claims

New York State Court of Claims

DICKERSON v. THE STATE OF NEW YORK, #2003-029-324, Claim No. 100200


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:
William J. Rold, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 31, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This timely filed claim alleges medical malpractice, breach of ministerial duty and negligence by the defendant at Fishkill Correctional Facility.[1]

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 sign.[2]
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 Mikler[3] 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.[4]
Claimant offered the doctor as an expert witness in this field and the Court accepted him as an expert[5] without objection.
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 medical care.[6]

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, Page 2).

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 field.[7]
Dr. Gordon-Salant testified that she has reviewed claimant's medical record and concluded that claimant has a profound[8] hearing 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[9]
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 and vertigo.
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 problems.

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 York, 159 AD2d 788, 789, lv denied 76 NY2d 701; Gordon v City of New York, 120 AD2d 562, affd 70 NY2d 839; see also, Powlowski v Wullich, 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 40 NY2d 804, supra; 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 Cove, 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, supra; 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 Bunim, 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 employee (
Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701).
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 brain.

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 unilateral deafness.

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.

October 31, 2003
White Plains, New York
Judge of the Court of Claims

[1] This claim was joined for trial with two other claims, Castillo v State of New York, Claim No. 102037 and Wilkes v State of New York, Claim No. 100371. During the first day of trial, both Castillo and Wilkes were settled. This decision deals only with the claim of Mr. Dickerson.
[2] A positive Romberg sign indicates a patient's loss of equilibrium when standing with feet together and eyes closed (The Merck Manual, 17th ed. 1999 at Page 1347).
[3] In 1997 Dr. Mikler was the Medical Director at Fishkill.
[4] Commonly referred to as ears, nose and throat or ENT.
[5] Dr. Ruben's curriculum vitae was admitted into evidence as Exhibit 47.
[6] It is noted that this opinion was, in effect, corroborated by the defendant's Medical Director, Dr. Mikler.
[7] Dr. Gordon-Salant's curriculum vitae was admitted into evidence as Exhibit 30.
[8] In this context, "profound" means total or near total loss.
[9]According to Dr. Gordon-Salant, CROS is an acronym that stands for Contralateral Routing of Signals. It is used to divert sound when one ear does not function at all.