New York State Court of Claims

New York State Court of Claims

ZACCHI v. THE STATE OF NEW YORK, #2003-032-520, Claim No. 102854


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:
Barton, Barton & Plotkin, LLPBy: Thomas P. Giuffra, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: G. Lawrence Dillon, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 30, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This case is analogous to the fable of the boy who cried wolf too many times and then was disbelieved when the wolf was present. In this case, unfortunately for the defendant, the wolf had always been there. The Court holds that the defendant is 100% liable for the medical malpractice that resulted in the loss of the claimant's larynx[1] and awards the claimant

$400,000.00 for past pain and suffering and $400,000.00 for future pain and suffering attributed to such loss.

Ronald Zacchi ("Claimant") was convicted for selling two nickel bags of cocaine to an undercover police officer and sentenced to two to six years for this crime (Tr I, pp. 17-18).[2] In 1998 he was incarcerated at the Gouverneur Correctional Facility ("Gouverneur"). From the time he was thirteen years old, claimant smoked one pack of cigarettes per day. (Tr I, p.18). He also had a medical history of a heart condition, emphysema, hiatal hernia, an abdominal hernia, hypothyroidism and diverticulitis.[3]

In 1998, Gouverneur employed two physicians, Dr. Robert Kasulke[4] and Dr. Frank Scott Sherman[5], and eleven nurses in its medical facility. Dr. Kasulke was the supervising physician. During 1998-1999, the physicians each worked nine hours per week. In order to see a physician, an inmate was ordinarily screened by a triage nurse at "sick call" which occurred at 6 A.M. each day. The triage nurse was the gatekeeper to the physician. If a nurse decided that an inmate should see a physician, the inmate's name would be added to the call-out list to be used when the physicians were on the premises. Denise Congleton[6] was a triage registered nurse at Gouverneur. She testified that during the average sick call, the triage nurse could see between 15 and 30 patients. (Tr II, p. 82). She described the most typical complaints at sick call to be colds, sore throats and coughing. (Tr II, p. 115). She attributed these complaints to the heating system at Gouverneur, which can blow cold air over the bunks, and to the long cold winter. (Tr II, pp. 117-118). In her experience at Gouverneur none of these complaints developed into cancer. Typically, the nurses treat these patients with a few courses of over-the-counter medications. (Tr II, p. 119). If these medications did not work, then antibiotics would be prescribed by the physician. (Tr II, p. 120). Nurse Congleton testified that it was part of the staff nurses' responsibilities to make the physician aware of any chronic problems, but it was the physician who was responsible for referring an inmate to an outside specialist. (Tr II, p. 85).

Claimant was treated for throat problems at the medical infirmary at Gouverneur in 1998 and 1999. His medical records indicate that claimant's first complaint of a chronic cough and sore throat occurred on April 27, 1998. (Exhibit 4, Gouverneur, p. 61). On May 6, he had complaints regarding coughing and swallowing. (Exhibit 4, Gouverneur, p. 59). On June 1, he complained of a sore throat and left ear pain. The left ear was examined and was found to be negative for redness. Warm gargles were recommended for the sore throat. (Exhibit 4, Gouverneur, p. 55). On June 3, he again complained of left ear pain and was scheduled to see a physician during the week. (Exhibit 4, Gouverneur, p. 54). On June 4, he again complained of difficulty in swallowing. (Exhibit 4, Gouverneur, p. 54).

On June 8, 1998, it is noted in his medical records that he had seen the physician the previous week and penicillin had been prescribed. (Exhibit 4, Gouverneur, p. 52). On June 22, however, he again complained of a bad cough and insisted that he had strep throat. He was examined by Nurse Congleton, who found that his throat was negative (pink in color) and there was no exudate (mucous). (Exhibit 4, Gouverneur, p. 52). On July 2, he complained of coughing and shortness of breath to Dr. Kasulke. On July 20, claimant was seen by Nurse Congleton, at which time she noted that he was complaining of a sore throat and that he could not swallow. She examined him and again found no redness, exudate or swelling of the throat. On this occasion, she issued him throat lozenges and recommended warm water and salt gargles. She noted on the record that he was scheduled for a follow up visit with Dr. Kasulke in October. She also spoke to Dr. Kasulke, discussed claimant's sore throat and difficulty in swallowing, but Dr. Kasulke told her that he did not want to see claimant earlier than October 1, 1998. (Exhibit 4, Gouverneur, p. 50). Nurse Congleton testified that she was not concerned because the physician makes the final decision, and in any event, she did not have the ability to go to a higher authority (Tr II, p. 102 ). On October 1, 1998, Nurse Congleton wrote that claimant complained that his sore throat was an ongoing problem and that he declined lozenges. (Exhibit 4, Gouverneur, p. 46). Nurse Congleton did not advise the physicians of this complaint. (Tr II, p. 103). Nurse Congleton testified that claimant's complaints between April 1998-October 1998 were chronic (Tr II, pp. 103-104) and that claimant was well known to the infirmary staff. (Exhibit 7, p.15) . Nurse Congleton had testified at her examination before trial[7] that it was not her practice to review an inmate's chart and history prior to examining the inmate, although she was able to look back at the chart during the visit. (Exhibit 7, pp. 15-16). Her testimony was not always consistent. At the examination before trial, she testified that she did not know if it was part of her responsibilities to know the symptoms of cancer. (Exhibit 7, p. 17). Upon further questioning she stated that throat pain and hoarseness were symptoms of cancer, but that she did not know the other signs. In contrast, at trial she knew all the symptoms of cancer except radiating ear pain. (Tr II, p. 86). She testified that she did not know if there was any significance to the findings of a negative throat (no redness or swelling) even if the patient complained of sore throat and difficulty swallowing. (Exhibit 7, pp. 46-47). At her examination before trial she knew claimant was a heavy smoker and at a greater than normal risk of developing throat cancer. (Exhibit 7, pp. 43-44). While at trial she stated that she did not believe that she was aware of his smoking history. (Tr II, p. 89).

Dr. Kasulke testified through videotaped testimony that the nursing staff was the primary care giver at Gouverneur, with the nursing administrator charged with supervising that staff. She also was responsible for doing spot checks of the charts. Since Dr. Kasulke was there on such a limited basis he did not review the charts. He relied on the nursing staff to inform him of the chronicity of complaints. (Exhibit 2, Tr, pp. 9, 50). Dr. Kasulke claimed that it was "[n]ot really" one of his responsibilities to supervise the nursing staff at Gouverneur, rather a senior nurse was in charge of the nursing activities and the "day-to-day life of the clinic". He did, however, review the protocols that were published for different types of problems. (Exhibit 2, Tr, pp. 7-8). He expected the nursing staff to review a patient's chart when there were complaints of a chronic nature and to bring those symptoms to his attention (Exhibit 2, Tr, pp. 9, 50), but it was also his usual custom and practice to review a patient's chart for chronic problems concurrently with the examination of that patient. (Exhibit 2, Tr, p. 15).

When he examined a patient who complained of a sore throat, Dr. Kasulke stated he did not use a pharyngoscope, a mirror that enables a physician to see farther down a throat than is ordinarily possible. Although trained in otolaryngology during his residency in surgery, he testified that he did not use this instrument because he did not have one at the prison, and he also did not have one in his private medical office since he was a surgeon. He also indicated that examinations made with a pharyngoscope are ordinarily done by an ear, nose and throat (ENT) specialist. (Exhibit 6, p. 57; Exhibit 2, p. 64).

Dr. Kasulke acknowledged that as of October 1, 1998, the medical staff at Gouverneur recognized claimant's throat soreness as a chronic problem (Exhibit 2, p. 40), one that waxes and wanes in intensity but never completely goes away. (Exhibit 2, Tr, p. 27). Dr. Kasulke also agreed that for the period of April through July 1998, claimant had a chronic problem with coughing and throat pain, which was treated with two courses of antibiotics. (Exhibit 2, Tr, pp. 33-36).

There was a discrepancy between the parties as to when claimant's symptoms were next noted in the record. Claimant argues that on April 2, 1999, he appeared at sick call for an uncontrollable cough and pain in his left ear. Defendant states that the claimant's next documented complaint related to this condition is on April 23, 1999, when he was seen at the infirmary for coughing.

However, on April 13, 1999, Dr. Philip Holtzapple, an outside gastroenterologist, saw the claimant for his diverticulitis. Significantly, he wrote:
Today the patient remarks about his hoarseness and pain in his throat. At his last visit, when he informed me of this, I started him on Zantac and his epigastric discomfort has improved somewhat. . . .
I have requested a consult with ENT to insure that there is no other pathological process other than reflux going on in the pharyngeal area.

(Exhibit 4, Gouverneur, p. 309 [emphasis supplied].) Claimant had been previously seen by Dr. Holtzapple on February 9, 1999. (Exhibit 4, SUNY Health Science Center at Syracuse, p. 181). Dr. Kasulke testified that he would have received a form from Dr. Holtzapple regarding these consults. (Exhibit 2, Tr, p. 42). Claimant was then seen by Dr. Kasulke on April 23 for coughing. Dr. Kasulke prescribed antibiotics (Exhibit 4, Gouverneur, p. 26) and put the ENT consult "on hold" (Exhibit 2, Tr, pp. 72-73).

On May 10, 1999 claimant saw Nurse Congleton and told her that he still did not feel well, despite having received the antibiotics on April 23. She noted that he had chronic cough and throat discomfort. During this visit, claimant inquired when he was going to see an ear, nose and throat specialist, but the nurse wrote in his chart, "No consult in place for ENT. Awaiting F/U at GI and Cardiology". (Exhibit 4, Gouverneur p. 25). He was issued cough syrup by Nurse Congleton.

Claimant was again seen by Nurse Congleton on May 26, 1999, when she noted his throat and left ear discomfort. She checked the throat and found it negative for swelling. There was minimal redness; his voice was hoarse; and the left ear canal was slightly red with no drainage. On that day, he was given lozenges and cough syrup. (Exhibit 4, Gouverneur, p. 24).

Nurse Congleton saw him again on June 7, 1999 when she noted that he complained of throat discomfort and voice hoarseness. She indicated on his chart that claimant was upset that he was never seen by an ENT specialist. Two days later, another nurse saw him and noted complaints of left ear and throat pain. In addition, his voice was hoarse. She assured him that the physician was following his case. He was offered throat lozenges, which he refused, and was told that he had an appointment with the physician. Dr. Kasulke testified that, although he would have expected the nursing staff to inform him of the claimant's symptoms at this point, he was not so informed by the nurses. (Exhibit 2, Tr, p. 47).

On June 25, 1999, claimant was seen by Dr. Kasulke who finally wrote a referral for the ENT consult, noting that the patient had had chronic hoarseness for nine months. (Exhibit 4, Gouverneur, p. 22, and Exhibit 2, Tr, p. 48). There was much discussion at trial whether that notation meant merely that the patient had complained of chronic hoarseness or that the staff knew about the hoarseness for that time period. Consult requests are classified as one of three types: emergent (life and death situation), urgent (between four and seven days) and routine (one month to four months). (Exhibit 6, p.13). The June 25, 1999 request for a consult by Dr. Kasulke was made on a routine basis. The ENT consult was scheduled for July 21, 1999 (Exhibit 2, Tr, p. 52). On July 7, 1999, it is noted in claimant's chart that the July 21, 1999 ENT appointment had been cancelled by the Wexford schedulers[8] and was now set for September 14, 1999. Dr. Kasulke was unaware of this change of appointment. (Exhibit 2, Tr, p. 53).

On July 13, 1999 claimant was seen by Nurse Congleton, again complaining of left ear discomfort, throat pain and hoarseness, and again the examination of his throat was negative. On July 19, 1999, he was seen by Dr. Ali, a physician on the premises, who noted left ear and throat pain. (Exhibit 4, Gouverneur, p. 20). On July 26, claimant returned to the infirmary, complaining of throat and ear pain. On that occasion, he told the nurse examining him that he was going to keep coming back until he was seen by a specialist. On July 27, he complained of hoarseness, questioned the status of his ENT consult, and requested to see the physician on premises. (Exhibit 4, Gouverneur, p. 19). On July 28, he went to the infirmary and reported that he had coughed up blood the previous night. He also requested the date of his ENT consult, which the nurse did not know (Exhibit 4, Gouverneur, p. 18). Dr. Kasulke testified that he was unaware that claimant had reportedly coughed up blood. (Exhibit 2, Tr, p. 56).

On August 2, 1999, he was seen by a nurse and again complained of throat pain, hoarseness and coughing. He refused Tylenol and cough syrup, inquired about his ENT consult, and again requested to see a physician on premises. (Exhibit 4, Gouverneur, p.18). On August 4, 1999, he was seen by a nurse who reported that he complained of ear and throat pain, difficulty in swallowing, and a feeling "like he dislocated something in [his] throat". Warm gargles were ordered. (Exhibit 4, Gouverneur, p. 17). The following day, he was seen by another nurse who noted "MD callout[.] Evaluate [t]hroat [p]ain, difficulty in [s]wallowing and [h]oarseness." (Id.) Claimant was finally was seen by Dr. Kasulke on August 6, 1999, and this time the doctor requested an urgent referral for an ENT consult after palpating a fullness on the left side of claimant's neck at this visit.[9] (Id.)

When claimant was at last seen by Dr. Woods, an ENT specialist, on August 11, 1999, a mass was discovered in his throat. (Exhibit 4, University Hospital, p. 264). A biopsy was performed by Dr. Arthur Falk, who diagnosed claimant with a laryngeal lesion on September 3, 1999. (Exhibit 4, University Hospital, p. 301). The pathology report indicated that claimant had squamous cell carcinoma. (Exhibit 4, University Hospital, p. 304). Dr. Woods then sent claimant to see Dr. Seung S. Hahn, an attending physician in Radiation Oncology at University Hospital, to be evaluated for possible laryngeal preservation with concurrent chemotherapy and radiation therapy.

On September 20, 1999, Dr. Hahn concluded that since the disease extended to the supraglottis and subglottis (the area above and below the vocal cords) the chance of laryngeal preservation was quite remote. He recommended surgery to remove the larynx with postoperative radiation. Dr. Hahn wrote:
I told the patient that I actually think that he has a better chance of tumor control by surgery followed by postoperative radiation therapy than the combination chemo and radiation therapy with surgery for the salvage of treatment failure. I discussed all of the possible benefits and side effects of the two different treatment regimens and the patient seems inclined to go with surgery and postoperative radiotherapy after the completion of the discussion with me today. (Exhibit 4, Gouverneur, p. 133).

On October 7, 1999 claimant had a neck dissection and laryngectomy with a tracheotomy and the placing of a stoma.[10] Claimant's lymph nodes were not affected. (Exhibit 4, University Hospital, p. 85). His T-3[11] lesion involved both vocal cords, the supraglottis and subglottis and the area to the left of his vocal cords (periform sinus area). (Tr III, pp. 20-22). He received postoperative radiation and has had no reoccurrence of the cancer in almost four years.[12]

At trial, each party produced an expert, and both agreed that there had been a deviation from the medically accepted standard of care provided to the claimant. Not surprisingly, however, they differed in their opinions as to the point at which claimant should have been seen by an ENT specialist. Testifying on behalf of claimant, Dr. Alvin Katz[13] stated that there are various stages of cancer. A T-0 , carcinoma in situ, is the earliest stage and can be treated with radiation with a 100% success rate.[14] A T-1 lesion could probably be treated with a 90-95% success rate with radiation without surgery and sparing the larynx. A T-2 lesion requires a combination treatment. Radiation may be given preoperatively and postoperatively and surgery can be done sparingly where part of the tissue is removed. A T-3 lesion, which claimant had, requires a laryngectomy with radiation to control the spread of the cancer. (Tr III, pp. 17-24).

According to Dr. Katz, if a person has coughing, hoarseness, difficulty in swallowing and ear pain, the larynx must be looked at since it could cause all those symptoms. Smokers with recreational drug activity are more vulnerable than others. (Tr III, pp. 25-26). Coughing alone is not enough to draw attention to the larynx, but coughing with a sore throat that was not affected by medicine, left ear pain with no local left ear problem that logically causes the pain, and a difficulty in swallowing, which could indicate an area of compression, are all cardinal complaints that should trigger the thought of laryngeal cancer. (Tr III, pp. 27-28). In his opinion, there were several instances in which there was a departure from the standard of care in the treatment given to (or withheld from) claimant:

(1) the triage nurses documented the same complaints for well over a year and Nurse Congleton indicated that she made the physician aware, but no intervention ensued;

(2) Dr. Holtzapple had a suspicion that something was wrong in April of 1999 and recommended an ENT consult, but Dr. Kasulke, who oversaw Dr. Holtzapple, decided to put a hold on the consult;

(3) Dr. Kasulke had access to specialists who could perform an examination of the larynx, yet he continued to delay the ENT consult (Tr III, pp. 29-31).

In Dr. Katz's opinion , the cancerous lesion began sometime in 1998, and if it had been detected in a timely manner, he believes that claimant would have done well with just radiation or some lesser operation, such as a partial laryngectomy or cordectomy. He is of the opinion that the cancer could have been diagnosed in June of 1998; therefore loss of the larynx, a tracheotomy and stoma could have been avoided. ( Tr III, p. 32). He also believes that the tumor became a T-3 tumor in the spring of 1999 when there was a remarkable increase in claimant's hoarseness, an indication that the vocal cord is becoming fixed. (Tr III, p. 32). In his view, there was no reasonable alternative other than the treatment option that claimant chose.

Dr. Anthony LaBruna[15] was at times confused about claimant's medical history but refreshed his memory by reviewing the chart. He noted that between October 1, 1998 and April of 1999, claimant did not complain of any throat pains, hoarseness or coughing. Dr. LaBruna concluded that the appropriate time to get an ENT examination, therefore, would have been April-May 1999, because by then claimant was consistently hoarse and Dr. Holtzapple had recommended an ENT consult. (Tr III, pp. 103-108). He testified that whenever a patient, especially one who smokes and drinks, has chronic, persistent hoarseness, he would want to obtain an ENT consult within a month's time (Tr III, p.152). He believed the tumor could have been detected around April or May 1999. (Tr III, p. 123). According to Dr. LaBruna, therefore, since claimant was not seen by an ENT physician until August of 1999, the delay of three months was the deviation from the standard of care. Although he testified that if a patient presented himself with complaints of hoarseness for six to eight months, it would be a departure from the standard of care to have failed to obtain an ENT consult (Tr III, pp.137-138), Dr. LaBruna appeared confused as he reviewed the medical records about whether the claimant had chronic hoarseness for six to eight months prior to June 28, 1999. (Tr III, pp. 140-141).

Claimant testified about how the laryngectomy and the placing of a stoma has affected his life.[16] He communicates with an electrolarynx. Every morning claimant must use a suction to remove the mucous that has built up in his chest during the previous night. He places a long suction tube down his stoma in order to remove the mucous, so that he does not have difficulty in breathing. The process causes him to gag. He must use oxygen to loosen the congestion before the suctioning, so it does not dry in his throat and cause suffocation. When he takes a shower, he has to wear a rubber mask around the stoma so water does not flow into it. He can no longer swim. He cannot breathe through his nose or mouth anymore and, if the stoma is covered, he cannot breathe at all. Since the air is not going through his mouth anymore, it changes the taste of things and he obviously cannot smell. Food does not taste the same to him. He testified that people ridicule him because of the stoma. His sex life is not the same as it was before the operation. He is prevented from participating in any sports since he does not breathe as well as he did when he used to box, play power ball and work out. (Tr I, pp. 63-73).
The State owes a duty to its incarcerated citizens to provide them with reasonable and adequate medical care (Auger v State of New York, 263 AD2d 929 [3d Dept 1999]; Kagan v State of New York, 221 AD2d 7 [2d Dept 1996]; Rivers v State of New York, 159 AD2d 788 [3d Dept 1990], lv denied 76 NY2d 701). The Court of Claims Act §8, which waived the State's immunity to suit, also made the rule of respondeat superior applicable to all officers, servants, agents and employees of the State, including physicians (McCrossen v State of New York, 277 App Div 1160 [4th Dept 1950]). The scope of the State's duty is the standard formulation that "[t]he risk reasonably to be perceived defines the duty to be obeyed" Palsgraf v Long Island R.R., 248 NY 339 [1928]).

There are three duties that a physician, or in some instances a nurse,[17] owes to a patient: (1) a duty to possess the requisite knowledge and skill such as is possessed by the average member of the medical profession; (2) a duty to exercise ordinary and reasonable care in the application of such professional knowledge and skill; and (3) the duty to use his or her best judgment in the application of this knowledge and skill (Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804; Pike v Honsinger, 155 NY 201 [1898]; see also, Sitts v United States, 811 F2d 736 [2d Cir 1987]).

The State is not liable, however, for a mere mistake in professional judgment that is made after careful examination of the patient (see, Schrempf v State of New York, 66 NY2d 289, 295; Sciarabba v State of New York, 182 AD2d 892, 893-894). In the case of Bell v New York City Health & Hosps. Corp. (90 AD2d 270 [2d Dept 1982]), where there was a "continuous absence of co-ordination [sic] between the psychiatrist and the nursing staff (id. at 283)," the Court noted that "[p]hysicians are not liable for mistakes in professional judgment, provided that they do what they think best after careful examination. . . . However, liability can ensue if their judgment is not based upon intelligence and thus there is a failure to exercise any professional judgment" (id. at 281, citing Pigno v Bunim, 43 AD2d 718 [2d Dept 1973], affd 35 NY2d 841 [emphasis in original]).

"[T]o succeed in a medical malpractice action, a plaintiff must demonstrate, [usually by expert testimony], that a physician deviated or departed from accepted practice and that such departure was a proximate cause of injury or damage" (Giambona v Stein, 265 AD2d 775 [3d Dept 1999] [emphasis in original]; see also, Sitts v United States, supra). "While the State has a duty to render medical services to inmates without undue delay, in order for the State to be liable it must be shown that the delays in diagnosis and/or treatment were a proximate or aggravating cause of the claimed injury" (Marchione v State of New York, 194 AD2d 851, 854-855 [3d Dept 1993]). Proximate cause is established if the deviation was a "substantial factor" in producing the injury (Ford v United States, 2000 WL 1745044 [SDNY 2000], citing Perez v United States, 85 F Supp 2d 220 [SDNY 1999]). A claimant is required to show that there was a "substantial possibility" that his affliction was caused by the delay in treatment by the State and that the State's negligence deprived claimant of an appreciable chance of avoiding the loss suffered (Marchione v State of New York, supra; see also, Brown v State of New York, 192 AD2d 936 [3d Dept 1993]; Kimball v Scors, 59 AD2d 984 [1977]; Kennedy v Peninsula Hosp. Center, 135 AD2d 788 [2d Dept 1987]). In order to establish a prima facie case, the plaintiff need not entirely eliminate all possibility that the defendant's conduct was not a cause, but only offer sufficient evidence from which reasonable persons could conclude that it is more probable that the injury was caused by the defendant than it was not (Monahan v Weichert, 82 AD2d 102, at 108 [4th Dept 1981]).

The Courts have found that when prisoners' repeated complaints of severe symptoms are met with only cursory examinations, something more than an honest error in professional judgment has occurred. The State cannot insulate itself from liability if its medical staff did not exercise judgment after a careful examination of the claimant's condition (Stanback v State of New York, 163 AD2d 298 [2d Dept 1990]; Kagan v State of New York, 221 AD2d 7 [2d Dept 1996]). In Kagan (supra), the Court noted that the claimant communicated legitimate medical complaints to prison personnel but that his complaints were either ignored or discounted by the individuals whose duty it was to listen and arrange for appropriate diagnosis and treatment. It is no defense in these situations that the symptoms were common or could be caused by other ailments, when prudent medical procedures dictate that available tests should be used to clarify the cause of the symptoms (Larkin v State of New York, 84 AD2d 438 [4th Dept 1982]).
The central issue in this case is whether the medical staff's delay in detecting claimant's laryngeal cancer, which did not occur until August 1999, constituted medical malpractice. Both the trial testimony and the medical records make it clear that during the seven month period from April 1998 to October 1998, claimant consistently complained of a sore throat, coughing, ear pain, and difficulty in swallowing. Although his ear and throat were consistently negative for redness or mucous during this time period, he was treated during this time only with over-the-counter medications, warm gargles, throat lozenges, and antibiotics, remedies designed to alleviate and treat a typical "sore throat," a condition that typically results in redness and mucous. Although these treatments did not work, they were continued throughout the seven month period, and there was no serious attempt to consider a different diagnosis or the possible use of different treatment until August 1999, a year and four months after the initial complaints.

There appears to have been a severe deficit of knowledge about the symptoms of throat cancer among the facility nursing staff. Nurse Congleton testified that she was not even certain that it was her responsibility to know the warning signs of cancer. In addition, there was significant conflict between her testimony at trial and her testimony at an earlier examination before trial regarding her knowledge of these warning signs. Finally, Nurse Congleton's contention that claimant's symptoms could logically be blamed on the prison's heating system is illogical in view of the time period when he was experiencing those symptoms: from April to October.

The responsibility for conducting an overall review of a patient's chart, a fundamental task in any medical treatment facility, was sharply disputed at trial. Nurse Congleton maintained that such a review was primarily a function of the physicians and medical director, the people who were in a position to request a consultation if one were needed. Dr. Kasulke, on the other hand, blamed the nursing staff for not keeping him informed about the chronic nature of claimant's symptoms. Apparently, neither the nursing staff nor the medical staff reviewed claimant's chart on a regular basis. In fact, one wonders if they reviewed it at all, even after claimant began to inform them that his symptoms had persisted for some time. In July 1998, when Dr. Kasulke admits that he was informed that claimant's symptoms had been continual for several months and that all attempted treatments had been ineffective, the doctor nevertheless determined that he did not need to see the patient for another two and one half months.

It is clear from the medical records that the staff at Gouverneur believed claimant to be a chronic complainer, and they may have given little weight to some of his complaints for that reason. Even true hypochondriacs can become ill, however, and claimant's many significant warning signs of cancer should not have been ignored.

The fact that claimant did not become noticeably hoarse in 1998 does not justify continually overlooking the other pertinent symptoms: constant sore throat, coughing, ear pain, difficulty swallowing, absence of redness or mucous, and lack of response to the usual treatments for sore throats. Claimant's expert, Dr. Katz, whom the Court found to be very credible, gave his opinion that even some of these symptoms, particularly the lack of response to treatment and the absence of any observable problems with the throat or the ear, over a period of months, would absolutely warrant an ENT referral. Defendant's expert, Dr. LaBruna,[18] did not actually say that hoarseness had to be present before a consult was requested; his statement was that if hoarseness were present along with the other symptoms, a consult would be necessary within one month.

The medical staff need not have strongly suspected cancer in order to request or direct a consult; they merely had to recognize that they were failing to diagnose a problem that might be serious. Their responsibility was particularly great since the patient in question was solely dependent on the prison medical staff for any treatment he received. He was unable to do anything except return to the same nurses and doctors, time and time again, in an effort to obtain help. He could not go to another physician or even to an emergency room, where he would most likely have been examined by an ENT resident or specialist. Particularly troubling is Dr. Kasulke's calm acceptance of the fact that he never used a pharyngoscope to investigate any possible abnormality in claimant's lower throat. This simple diagnostic tool, even if employed by a "regular" physician rather than a specialist, would very likely have shown something out of the ordinary by the time claimant's symptoms were so severe and persistent. In fact, the lower throat was the only area that could have revealed or suggested an explanation for these symptoms, since routine examination of the upper throat and ears never did. No effort was made, however, to examine it or to make a referral so that it could be examined. If Dr. Kasulke was unwilling to order a pharyngoscope for the prison's medical unit, or to purchase one himself for use at the prison even though he did not need it in his surgical practice, then he had a heightened duty to order a consult for someone who needed such an examination.

The Court finds that by July 1998, after three months of claimant's exhibiting continuous symptoms that are warning signs of cancer, with no objective signs of a less serious explanation for those symptoms, and failing to respond to treatment for ordinary throat ailments, the standards of acceptable medical practice required that an ENT consultation be ordered.

The Court also credits the testimony of claimant's expert, Dr. Katz, that if claimant's cancer had been diagnosed, as it should have been over a year earlier, it would not have been necessary to remove his larynx. With the delayed discovery, Dr. Hahn, the radiologist oncologist, recommended the laryngectomy with radiation although it was technically feasible (if not particularly wise or recommended) for claimant to choose a more conservative treatment. There is no doubt that claimant made the only rational choice available to him at that time, but he should not have been faced with a situation that virtually required him to elect this radical, life-altering form of treatment.

When his symptoms first began a year earlier, he would undoubtedly have had other less drastic options. It is evident that there was marked advancement during the year, for by the time claimant was finally referred for a consultation, the mass in his throat could be felt on examination. Defendant is correct that it can never be known with absolute certainty whether claimant could have avoided a laryngectomy had he been diagnosed in the summer of 1998. The reason this cannot be known, however, is because defendant was negligent and did not examine claimant thoroughly to discover the cancer. A defendant may not take advantage of an absence of relevant evidence when such absence was a direct result of its own negligence.

The Court holds that the State is 100 percent responsible for failing to diagnose the cancer earlier. Therefore the State is 100 percent liable for the additional pain and suffering that claimant endured because of the spread of the cancer during that additional year which made removal of his larynx necessary.
Claimant seeks compensation only for additional pain and suffering that was caused by the negligent delay in diagnosing his condition. Awards for pain and suffering are inevitably based on subjective opinions "formulated without the guidance of precise and detailed guidelines", and consequently, the awards given in comparable cases must be consulted to determine what is reasonable compensation (Valentine v Lopez, 283 AD2d 739, 743 [3d Dept 2001]). The standard for determining whether an award is excessive or inadequate is whether the award deviates materially from what would be considered reasonable compensation (CPLR 5501[c]; Harvey v Mazal Am. Partners, 79 NY2d 218 [1992]).

An award for pain and suffering should include compensation for both the physical and emotional consequences of the injury, and the Court should consider the effect that the injury has had on the claimant's capacity to lead a normal life (McDougald v Garber, 73 NY2d 246 [1989]; Lamot v Gondek, 163 AD2d 678 [3d Dept 1990]). It is appropriate, therefore, to consider the disfiguring nature of an injury, especially if the injury is visible to the public at large and can cause the injured party to become a "subject of pity and scorn" (Carson v De Lorenzo, 238 AD2d 790, 792 [3d Dept 1997], lv denied 90 NY2d 810). In addition to being disfiguring, claimant's particular injury has interfered with his very ability to communicate with others and may cause some persons to avoid conversation and/or close physical contact with him. Claimant testified, in fact, that this is the case and something that particularly bothers him. Claimant was 56 years old at the time the malpractice occurred, 60 years old at the time of trial, and he has a life expectancy of 20 years. He is no longer incarcerated. His injury, obviously, is permanent, pervades his everyday life, and significantly interferes with his interactions and communication with others in almost every setting or occasion.

Upon consideration of awards that were subsequently upheld on appeal and modifications to other awards that were made by appellate courts, the Court awards $400,000.00 for past pain and suffering and $400,000.00 for future pain and suffering (see, Sutch v Yarinsky, 292 AD2d 715 [3d Dept 2002]; Morrisseau v State of New York, 265 AD2d 647 [3d Dept 1999]; Stedman v Bouillon, 234 AD2d 876 [3d Dept 1996]), for a total award of $800,000.00.

Since the amount of future damages exceeds $250,000.00, a structured judgment is required. Consequently, judgment will be held in abeyance pending a hearing pursuant to CPLR article 50-A. The Court encourages the parties to agree upon an attorney's fee calculation and the discount rate to be applied to formulate a structured settlement of their own (see, CPLR 5031[f]. In the event that the parties cannot reach such an agreement, each party will submit a proposed judgment in writing conforming to the requirements of CPLR article 50-A within 60 days of the service of this decision upon them by the Clerk of the Court. A hearing will then be scheduled at the mutual convenience of the parties and the Court. To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).

All motions made at the trial and not heretofore ruled upon are denied.

September 30, 2003
Albany, New York

Judge of the Court of Claims

[1]The claim also sets forth causes of action for malpractice relating to treatment of a "hiatal hernia and/or umbilical hernia" (claim, ¶ 4[b]) and for lack of informed consent (claim, ¶ 4[a] & [b]), but at trial there was no proof of either of these alleged torts.
[2]Because each day's trial transcript contains page numbers that start with the number one, the transcripts for April 21, 22, and 23, 2003 will be referred to as Tr I, Tr II and Tr III, respectively.
[3]Exhibit A, physical examination report by Dr. William I. Kuhel.
[4]Dr. Kasulke attended medical school at the State University of New York at Syracuse; participated in a general surgery residency program at Montefiore Hospital in the Bronx, New York from 1975-1979; and pursued a fellowship in vascular surgery at the University of Missouri from 1979-1981. He is board certified in general surgery (Exhibit 2, Transcript from a videotaped deposition of Dr. Kasulke, [Tr] pp. 3-4).
[5]Dr. Sherman is board certified in anesthesia and family practice (Exhibit 2, Tr, p. 11).
[6]Denise Congleton has been a registered nurse in the State of New York since 1982.
[7] During trial Nurse Congleton testified live and Dr. Kasulke testified through videotape. Claimant's attorney moved to admit the transcripts for these witnesses' examinations before trial into evidence, and defense counsel opposed because both of these witnesses testified at trial. CPLR 3117(a)(2) provides that the deposition of a party's employee, among others, "may be used for any purpose by any party who was adversely interested when the deposition testimony was given." Although claimant called Nurse Congleton as a witness and introduced the videotape testimony of Dr. Kasulke, at the time of the depositions these individuals were adversely interested to the position of the claimant. In addition, use of Dr. Kasulke's deposition is authorized by CPLR 3117(a)(4).
[8]The request was sent to Wexford, a management group contracted by the State, which set up the actual appointment. (Exhibit 2, pp. 15-16, pp. 51-52).
[9]According to the Court's calculation, between April 1998 and August of 1999, claimant was seen by the nursing staff at Gouverneur twenty-six times and the physicians on staff ten times for his throat problems. He saw Dr. Kasulke twenty-four times in the same period for all of his complaints including the throat problems.
[10]A stoma is defined as "[a]n artificial opening between two cavities or canals, or between such and the surface of the body (Stedman's Medical Dictionary, 27th Ed).
[11]There is a staging of T-1 to T-4 which describes the size of the tumor. (Tr III, p. 116). The staging of cancer involves three elements: the T status (the size of the tumor), the N status (the nodule status), and the M status (metastasis). (Tr III, p. 129).
[12]Exhibit A. Within the first three years of treatment, 96 % of the cancers that would reoccur do so. After five years the patient is deemed cancer-free and a survivor, but there is no guarantee that the problem that caused this cancer may not cause other cancers within ten years. (Tr III, p. 149).
[13] Dr. Katz attended medical school at the State University of New York Downstate Medical Center and was licensed to practice medicine in New York in 1964. He completed his internship in internal medicine at King's County Hospital; took a year of general surgery at New York University Bellevue Medical Center, and during 1965-1968, he trained at Manhattan Eye Ear and Throat Hospital as an ear, nose and throat resident and eventually chief resident. He has continued his formal education by taking courses every year since 1965. He is presently the surgeon director at Manhattan Eye Ear and Throat Hospital, and a full attending physician at that hospital, Lenox Hill Hospital and New York Hospital. He is board certified in otolaryngology, head and neck surgery. From 1968-1972 he was an assistant surgeon at Sloane-Kettering Hospital where he dealt with all types of cancers in the throat, head and neck area. He is presently an active member of: the American Rhinologic Society, the American College of Surgeons, the International College of Surgeons and the New York State Medical Society.

[14] The report of Dr. Katz's examination of claimant was disclosed to the defendant. Dr. Katz also produced a second report, or addendum, for claimant's counsel, reviewing the case and identifying all of the instances that were, in his opinion, departures from acceptable medical practice. Defendant sought to compel disclosure of that second report. When a doctor or other expert issues a report that is based on something other than a physical or clinical examination of the subject, such report is immune from discovery as material created in preparation for litigation (Dorato v Schilp, 130 AD2d 348 [3d Dept 1987]; Freiman v Miller, 28 AD2d 1126 [2d Dept 1967]).

[15]Dr. LaBruna graduated form Cornell Medical College in 1990. He completed his General Surgery residency at Lenox Hill Hospital. He completed his residency in Otolaryngology Head and Neck Surgery at Manhattan Eye Ear and Throat/New York Hospital and a fellowship in Plastics and Reconstructive Surgery at Mount Sinai Hospital. He was board certified in Otolaryngology in 1997 and Plastics and Reconstructive Surgery in 2002. He is presently employed by the New York Hospital-Weill Medical College of Cornell University Medical Center where he is an assistant professor in Otorhinolaryngology and Plastic Surgery. He is also the Co-Director of the Cosmetic Laser Center at New York Presbyterian Hospital-Weill Medical College. He is an attending physician in the Department of Otolaryngology, Head and Neck Surgery and the Department of Plastic Surgery. He is licensed to practice in New York and New Jersey. He is a member of the American Society of Plastic and Reconstructive Surgeons, the American Rhinological Society, the Academy of Head and Neck Surgery, and the American Medical Association.
[16]The Court also viewed a videotape (Exhibit 3) that depicted claimant's daily routine regarding the suctioning and personal hygiene associated with the stoma.
[17] In Bleiler v Bodnar, (65 NY2d 65, 72 [1985]), the Court of Appeals established that any negligent act or omission of a physician, a hospital or a nurse that "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice."
[18]At times during his testimony, Dr. LaBruna appeared unfamiliar with claimant's medical history. In Zi Guang v State of New York, (263 AD2d 745, 747 [3d Dept 1999]), the appellate court stated that it is "noteworthy that claimant's expert at trial was often unresponsive to questions and appeared unfamiliar with claimant's medical records" and then gave substantial deference to the Court of Claim's credibility assessments and factual determinations.