New York State Court of Claims

New York State Court of Claims

HICKS v. THE STATE OF NEW YORK, #2004-031-514, Claim No. 99554


Court awards damages in medical malpractice claim.

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:
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

Robert Hicks, Claimant, alleges agents of the State committed medical malpractice/negligence when they misdiagnosed and improperly treated Claimant at the Collins Correctional Facility ("Collins") from November 23 - 27, 1998, causing Claimant pain and suffering and loss of blood flow to his left testicle and subsequent surgical removal of that testicle.

There is no dispute that Claimant suffered a left testicular torsion and infarction; that a left orchiectomy (testicle removal) and a right orchiopexy (tying the testicle to the scrotum to prevent torsion) were performed at Strong Memorial Hospital in Rochester, New York on November 27, 1998; and that his hospital stay was from November 27, 1998 to November 29, 1998.

Claimant was born on August 24, 1973. He was incarcerated from 1996 to 1999 at Collins, released to parole, and then reincarcerated in 2000 to May, 2001 on a parole violation. He has been unemployed since his release in 1999 except for a brief period babysitting sometime between 1999 and 2000. He has a high school diploma and completed two years of college. On direct examination, Claimant appeared embarrassed, distraught and emotional. On cross-examination, he was hostile and angry and consistently answered questions with "I can't recall." However, his description of the events leading up to the eventual surgery was credible and is consistent with his Ambulatory Medical Record.

Claimant testified that, on the morning of November 22, 1998, he felt pain in the area of his waist, on the left side. He lay on his bed in his dormitory room, used the bathroom, then went back to his bed where he "couldn't move."[1]
It was at this time that he noticed that his left testicle was swollen. Two people assisted him to the infirmary where he was seen by a nurse. He explained to her that his left testicle was swollen and indicated, with his hands, that the size of it was about the size of a baseball. She gave him Tylenol with codeine, which he vomited, and sent him back to the dormitory with a "call out" to see a doctor. However, before he could see a doctor, he asked the correction officers on duty to call the infirmary because he was still in pain, had blood in his urine, experienced pain when he urinated and he was constipated.
He recalled seeing a doctor approximately three times between November 23 and 27, 1998. At least one time he was seen by Dr. Tan but he could not recall the names of any other doctors. He testified that this went on for about four to five days before he was finally transported by a facility van to the hospital. He stated he was in pain during the ride and that when he arrived, a woman gave him an "IV" and checked his testicle. The doctors then operated on him, and when he woke up after the operation, he felt pain, discomfort and less of a man.

Claimant could not recall exactly how long he was in the hospital, but he eventually returned to Collins, and was in the infirmary for about one week. Following his release from the infirmary, he was put on bed rest and pain medication (which he stated did not help him). He stated he could not walk, he was not in any program and meals were delivered to him. He only went to the infirmary during this time to have his dressing changed, which he did himself. He could not recall how long he was on bed rest or pain medication or how long it was before he could walk again.

As he sat at trial, he described how the operation still impacts him. He testified that he can perform only limited activities with his daughter, he cannot physically lift his daughter, he cannot stand or walk for extended periods of time, nor can he ride in a car for a long time. He also states that his sex drive has decreased, that he feels he does not want to be seen naked in front of women and his is unable to maintain an erection. Regarding the right testicle, he feels a "pulling" where the testicle was surgically tied down.

Claimant's expert witness is a State-licensed physician, board certified by the American Board of Family Practice since 1990, and licensed by the State of New York in 1987. He is the Chairman of the Department of Family Practice at Jamaica Hospital Medical Center, as well as the Director of that Hospital's Family Practice Residency Program. He also maintains a private practice specializing in Family Medicine (Exhibit 12). During his career, he has seen approximately 500 to 600 patients for some kind of testicular condition; approximately ten cases were testicular torsion. He did have one prior experience in 1984 or 1985 with the specific procedure that is the subject of this claim.

The doctor testified, with a reasonable degree of medical certainty, that the medical care Claimant received from November 22 through 27, 1998, departed from the accepted standard of care in that Claimant was initially treated over the telephone for abdominal pain; the State's medical staff ignored the fact that the Claimant doubled over on November 22, 1998, the onset of the torsion. He opined that this departure was the substantial cause for the damage, that is the permanent loss of the left testicle. The doctor's opinion was based on a review of Claimant's Department of Correctional Services Ambulatory Health Record (Exhibits 2 - 9), the Medical Record of Strong Memorial Hospital (Exhibit 10), The Deposition of Dr. Joseph Tan, treating physician (Exhibit 14), and the Deposition of Robert Hicks, Claimant. Approximately five months after making his initial report based on the above materials (Exhibit 11), the doctor physically examined Claimant and issued an updated report (Exhibit 13).

The doctor observed that Claimant has suffered a visibly deformed scrotal sac, due to the now absent left testicle; feels tenderness in the left inguinal region (commonly referred to as the groin, this is the area where the leg meets the abdomen and there is a large ligament in the area, as well as the vas deferens); and swelling in the area of the right testicle, most likely due to the "tie-down." The doctor did not notice a scar on the left testicle but was certain that one existed as a result of the surgery. The doctor testified that Claimant appeared to be depressed, possessed poor self-esteem and complained of sexual dysfunction as a result of his injuries. The doctor did not independently verify any of these conditions.

The State's expert is board certified by the American Board of Urology since 1981 and licensed by the states of Missouri (1972), California (1974) and New York (1975). He is presently an Associate Professor of Urology at the State University of New York at Buffalo School of Medicine and Biomedical Sciences, Clinical Director of Urology at Erie County Medical Center, and Assistant Urologist at Buffalo General Hospital, Assistant Attending Physician, Department of Urology, The Children's Hospital of Buffalo and a staff physician, Urology, at Millard Fillmore Hospital (Exhibit D). He expressed no opinion as to the reasonableness of the facility's medical staff's actions; he spoke primarily to the issue of damages. However, when presented with a hypothetical involving symptoms presenting as torsion, the doctor testified that one should act quickly and not wait for the symptoms to go away.

The State's expert doctor has personally treated 75 to 100 torsion cases during his career; 50 to 75 of those cases involved surgery. In his experience, it takes generally six to eight weeks to recover from the operation and resume normal activity.

The doctor conducted a physical examination of Claimant and noted an absent left testicle. He also noted that Claimant may have tenderness on the left side inasmuch as he moved away from the doctor during the examination, a common indication of pain. The doctor did not note the presence of a scar, but assumed one was present. In addition, the doctor noted subjective tenderness on the right testicle, especially in the area of the stitches. Claimant's objective complaints were consistent with those made to his expert witness. However, the doctor testified that he saw nothing during his examination that would support Claimant's claims that he now suffers physical limitations, e.g. the ability to lift, and sexual dysfunction. No muscle other than the scrotal wall muscle was involved, moved or cut during the operation, or impacted in the events leading up to that operation. The doctor stated that Claimant's ability to lift, walk or work could not be impacted as there is no physical connection between the muscles involved in those activities and the testicles.[2]

Regarding Claimant's claim of sexual dysfunction, the doctor stated that such complaints are not uncommon. Neither are complaints about feeling less of a man. The doctor stated he was in no position to assess the psychological impact this had on Claimant.

I do have to address an issue raised on this witness's direct examination regarding detorsion. Detorsion occurs when a testicle twists (torsion), then untwists. The condition can occur spontaneously or can be attempted manually in the emergency room. There was testimony at trial that, when Claimant was kept overnight for observation on November 22, 1998, he was sent back to his dormitory the next day because his symptoms appeared to have abated (Exhibit 2), leaving open the possibility that detorsion may have occurred. However, there was no testimony within a reasonable degree of medical certainty that this did occur.

It is well settled that the State has a duty to provide reasonable and adequate medical care to the inmates of its correctional facilities (
Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701). The State may be cast in liability for injuries that result because its physicians fail to use ordinary and reasonable care or to exercise their 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). Only expert medical proof can establish the necessary legal causation required to impose liability and demonstrate that there was a deviation from good and accepted standards of medical care (see Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916; Spicer v Community Family Planning Council Health Ctr., 272 AD2d 317; Lyons v McCauley, 252 AD2d 516, lv denied 92 NY2d 814).
I credit Claimant's doctor's testimony on the issue of liability. It appears that Claimant presented at the infirmary sometime in the evening of November 22, 1998 with left testicular pain, swelling, leg numbness and left quadrant pain. A note entered in Claimant's Ambulatory Health Record earlier that day indicates that a correction officer had called on three separate occasions, between 3:20 p.m. and 4:25 p.m., to explain that Claimant was experiencing groin pain, was unable to walk and had vomited blood (Exhibit 3). He was admitted to the infirmary at 8:30 p.m. that night for observation (Exhibit 2).

Once at the infirmary, Claimant testified that he was actually experiencing pain in the left testicle and that it was swollen. The nurse's notes indicate that Claimant said he was nauseous and also had difficulty urinating. He was given Tylenol with codeine. At some point during the night, Claimant stated he was able to urinate without pain, that he was still complaining of testicular pain, but he did end up sleeping that night (Exhibits 8, 5). He was discharged the morning of November 23, 1998, Dr. Tan having diagnosed "Acute G.I. colic" that appeared to have abated after a bowel movement.

Claimant returned to the infirmary on November 24, 1998 with similar complaints. The notes indicate moderate swelling in the left testicle, abnormally wide gait, and tenderness in the left inguinal area. The nurse requested a doctor "ASAP." Over-the-counter pain medications were not working (Exhibit 2). On November 25, 1998, he still had the same complaints and was put on the list to see a doctor, given scrotal support, stool softener and instructions to soak in warm water. He saw a doctor on November 27, 1998, who noted that the left testicle was now 14 cm, the size of a softball, and he was sent to the Emergency Room at Strong Memorial Hospital (Exhibit 4).

Not only was Claimant's expert doctor clear that Claimant first presented with symptoms of testicular torsion on November 22, 1998, even the State's doctor agreed that such complaints should be evaluated "quickly" by a treating physician. It is also uncontroverted that the testicle begins to die within six to eight hours of having the blood supply cut off and that any time there is pain in the testicles, torsion is indicated. Because Claimant was clear that the pain was in his left testicle from 3:20 p.m. on November 22, 1998, I find that the physicians failed to use ordinary and reasonable care when they did not have Claimant's condition evaluated immediately. Therefore, the State is liable for Claimant's damages.

Claimant's pain and suffering from November 22, 1998 at 3:20 p.m. until his operation on November 27, 1998 is well documented and compensable. For his pre-operation pain and suffering, I award Claimant $100,000.00.

The expert testimony was clear that the only treatment for testicular torsion are the two procedures performed on Claimant; thus, even had the doctors confirmed the torsion and sent Claimant out to the hospital earlier than November 27, 1998, Claimant still would have experienced the pain and discomfort associated with the procedures and the normal recovery period of six to eight weeks. I make no award here.

However, I do make an award to the Claimant for the loss of his testicle, inasmuch as the State's doctors' failure to evaluate and treat Claimant during the six to eight hour window eliminated any chance that Claimant's left testicle could be saved. Claimant's damages for the lost testicle are $50,000.00.

I find no medical evidence in the record that supports Claimant's assertion that the doctors' acts or omissions from November 22, 1998 until November 27, 1998 are the proximate cause of Claimant's inability to work or lift. I make no award for those damages. As to psychological damages he claims to have sustained because he no longer has his left testicle, I award $10,000.00, based on both expert doctors' testimony that such feelings are not uncommon after this procedure.

Therefore, it is the Court's finding that Claimant is entitled to a total award of $160,000.00.


June 1, 2004
Rochester, New York

Judge of the Court of Claims

[1]My trial notes.
[2]The doctor's note of subjective tenderness did not change his opinion given that approximately 20% of the men who endure this exam feel uncomfortable because it is such a sensitive area; some men are more sensitive than others.