New York State Court of Claims

New York State Court of Claims
LOWE v. THE STATE OF NEW YORK, #2005-009-139, Claim No. 104523

Claimant, an inmate in the custody of the Department of Correctional Services brought this claim seeking damages based upon medical malpractice and ministerial neglect. Claimant alleges that he suffered a total loss of hearing in his right ear and a substantial loss of hearing in his left ear due to the failure of State physicians in timely and properly treating his ear infections. The Court found that the State did not process a request for an ENT consult in a timely manner, but also found that the lapse in time between the request and the actual examination was not a proximate cause of the injuries sustained by claimant. The claim was dismissed.
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:
BY: Earl D. Butler, Esq. & Matthew C. Butler, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Roger B. Williams, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
June 30, 2005

Official citation:
9 MISC 3D 1128(A)
Appellate results:
AFFIRMED 35 AD3D 1281 4TH DEPT 2006
See also (multicaptioned case)

Claimant alleges that he sustained injuries as a result of medical malpractice and ministerial neglect when he was treated for infections in both of his ears while in the custody of the Department of Correctional Services (hereinafter “DOCS”). As a consequence of the treatment received by him, claimant alleges that he has suffered a total loss of hearing in his right ear and a substantial loss of hearing in his left ear. The trial of this claim was bifurcated, and this decision addresses the issue of liability only.
The relevant facts, as set forth at trial, establish that claimant was transferred into DOCS custody from Broome County Correctional Facility in mid-June, 1999. Upon his arrival at Elmira Correctional Facility, claimant underwent a physical and intake evaluation on June 21, 1999. Claimant’s medical records (see Defendant’s Exhibit C) reflect that claimant had normal hearing in both ears (even though there was no record of any diagnostic testing), but claimant did register unspecified complaints about his ears at that time. An examination revealed dusky tympanic membranes, and claimant was diagnosed with an ear infection and placed on a ten-day treatment of antibiotics. Shortly thereafter, claimant was transferred to Willard Drug Treatment Facility, and the records from his intake assessment at this facility, dated June 29, 1999, note that claimant was still suffering from his previously diagnosed ear infection, and that treatment with antibiotics was continued.
Two days later, on July 1, 1999, claimant’s medical records indicate that he complained of bilateral ear pain. The next day, claimant’s chart was reviewed by David L. Walrath, M.D., the Health Services Director at Willard, who noted the continuing antibiotic treatment for claimant’s ear infection. Two days later, however, claimant again complained of bilateral ear pain, as well as drainage from his right ear drum. On July 6, 1999, claimant again complained of his ear infections, and apparently advised the nurse that he had been suffering recurring ear infections since March, 1999. The examination on July 6, 1999 revealed drainage from his right ear and an occluded ear drum.
The following day, July 7, 1999, Dr. Stornelli prepared a Consultation Request for an ENT consult. Dr. Stornelli utilized a printed Consultation Request form, which is a multiple-sheet carbon copy, and completed the top portion of this form as the referring physician. Dr. Stornelli left the section pertaining to “level of care” blank. At that time, consultation requests were simultaneously entered into the DOCS’ computer referral system, which is connected to Wexford (the managed care company for DOCS). In claimant’s case, the computer-generated referral request was marked “urgent”, contrary to the hand-prepared Consultation Request form. Patrick Buttarazzi, M.D., the Health Services Director at Cayuga Correctional Facility, acknowledged during his testimony that an “urgent” request for a consult, according to DOCS protocol, mandated that such consult be performed within 72 hours. As set forth above, however, the hand-prepared request form and the computer-generated request form for the same consultation request were at odds with respect to the level of care indicated.
In any event, on July 15, 1999 (8 days after Dr. Stornelli’s request), the ENT consult request was approved by Wexford and an appointment was scheduled for August 11, 1999. Obviously, this consult was not scheduled or conducted within 72 hours of the request made by Dr. Stornelli on July 7, 1999.
Meanwhile, claimant continued to complain of drainage from his ears. On July 12, 1999, claimant was examined at Willard and his medical records indicate that his tympanic membranes were discolored. He was prescribed another antibiotic, Cipro. The following day, July 13, 1999, claimant was transferred to Cayuga Correctional Facility, and a note on his medical chart from that day indicates that the prescribed Cipro had not yet been received from the pharmacy. A medical assessment was performed upon claimant’s arrival at Cayuga Correctional Facility on July 13, 1999. On that day, the nurse performing the assessment noted that claimant’s ears were oozing, that he was on antibiotics, and that he needed his prescription filled.
On July 22, 1999, claimant once again registered complaints about his ears at sick call, and antibiotics were prescribed. He attended sick call again on July 27, 1999 also complaining of ear discomfort.
Claimant then met with Dr. Buttarazzi on August 3, 1999. Dr. Buttarazzi noted that claimant was suffering from chronic otitis, and made reference to the fact that claimant was awaiting an ENT consult on August 11, 1999. Prior to that consult, however, claimant again presented to sick call on August 10, 1999, this time carrying a tissue with drainage on it, and complaining that his ears were bleeding.
On August 11, 1999 claimant was sent for his scheduled ENT consultation at the Walsh Medical Clinic in Syracuse. Claimant underwent a hearing examination administered by Richard Martell, a Certified Occupational Hearing Conservationist. Mr. Martell’s report indicated that claimant was suffering total hearing loss in his right ear, with a significant loss of hearing in his left ear. The report, however, also contained a notation that there was a possibility of malingering due to discrepancies in the test results; Mr. Martell therefore characterized these results as unreliable.
On that date, claimant was also examined by Dr. Woods, an otolaryngologist, who diagnosed claimant with bilateral cholesteatoma. Dr. Woods recommended tympanomastoid surgery for his right ear and made a request for a CT scan of the temporal bone. As to the level of care, Dr. Woods marked “routine” on the consultation form.
Three days after his ENT consult, on August 14, 1999, claimant again reported for sick call complaining of pain in both ears. At that time, claimant’s medical records reflect that the nurse reviewed the consultation report with Dr. Buttarazzi by telephone, and Dr. Buttarazzi then decided to prescribe the medication suggested in the report, and ordered the nurse to dispense that medication.
At trial, there was substantial testimony taken as to whether Dr. Buttarazzi had actually reviewed the completed consultation report as required by the DOCS’ Health Services Policy Manual. It is claimant’s position that Dr. Buttarazzi never reviewed this report, nor that he made appropriate recommendations on the basis of any such review. In claimant’s ambulatory health record (see Defendant’s Exhibit C), the copy of the consultation report included therein contains Dr. Buttarazzi’s undated initials, and Dr. Buttarazzi relies on this fact to establish that he did review the report. In rebuttal, however, claimant introduced a copy of the same consultation report (see Claimant’s Exhibit 6) which contains no such initials. Claimant relies on this discrepancy in an attempt to establish that Dr. Buttarazzi failed to comply with established protocols for the review of consultation reports contained in the DOCS’ Health Services Policy Manual. Regardless, Dr.  Buttarazzi affirmatively testified at trial that he was informed of the consultant’s report by telephone, and that he based his recommendation for treatment (the prescription of medication) on this review.
Nevertheless, claimant continued to experience problems with his ears, and he was examined by Dr. Buttarazzi on August 25, 1999. The antibiotic Cipro was again prescribed, and Dr. Buttarazzi noted in claimant’s medical chart that claimant was awaiting surgery. On that date Dr. Buttarazzi also approved the referral for the CT scan of the temporal bone (recommended by ENT specialist Dr. Woods). As to urgency of care, Dr. Buttarazzi indicated “soon” as the time frame for such procedure. Although Dr. Buttarazzi testified at trial that this level of care was merely a personal preference of his, the “soon” terminology is interpreted to mean that such procedure should be performed within 14 days.
Dr. Buttarazzi’s request for the CT scan, however, was denied the following day on August 26, 1999. On September 2, 1999 claimant signed up for sick call but did not show. The next day, September 3, 1999, however, claimant reported to sick call complaining of pain in both ears, that he was leaking yellow fluid from his ears, and that his right ear had a bloody discharge. The nurse who examined claimant at that time scheduled him for an appointment with a physician for September 8, 1999.
In the early hours of September 6, 1999, two days prior to his scheduled appointment, claimant became dizzy and light-headed, and fell on his way to the bathroom and passed out. He again complained of pain in both ears and also of deafness in his right ear. The nurse who examined claimant observed that the right ear canal was red, with small puss-like pinpoint bumps, that the left ear canal was red, and that the left eardrum was bulging. Dr. Kaiser, a staff physician at Cayuga, was notified, and claimant was admitted to the infirmary. He was prescribed several medications at that time, including Bactrim, Sudafed, and Tylenol with codeine.
Claimant was discharged from the infirmary on September 8, 1999, with the diagnosis of bilateral ear infections and syncope (fainting). Another request for a CT scan referral was submitted, under the level of care as “routine”, and the request for tympanomastoid surgery was also resubmitted.
Claimant again reported for sick call on September 20, 1999 complaining that his right ear was bleeding, and that his left ear was draining fluid. He requested to see a physician, and informed the nurse that he had finished the Bactrim.
The following day, September 21, 1999 claimant again signed up for sick call but did not appear.
On September 24, 1999 claimant underwent a CT scan at University Hospital in Syracuse. The report of the scan demonstrated abnormal middle-ear soft tissue density with deformity of the tympanic membrane on the left, findings consistent with cholesteatoma.
Subsequently, claimant reported to sick call on October 4, 1999, and was examined by Dr. Buttarazzi again on October 8, 1999. At the October 8 appointment, Dr. Buttarazzi requested an ENT follow-up. Later that same day, after regular sick call hours, claimant again complained of ear drainage and asked for Tylenol.
Claimant appeared for sick call once again on October 21, 1999 complaining of pain, bleeding and drainage from his right ear. He again stated that he was deaf in his right ear. At this appointment, it was noted that surgery had been approved on October 5, 1999, but had yet to be scheduled.
Claimant again reported for sick call on November 12, 1999, and on November 14, 1999 claimant was admitted to the infirmary in preparation for surgery which was scheduled for the following day, November 15, 1999.
On that date, at University Hospital, claimant underwent a right-canal tympanomeastomastoidectomy. The surgeon who performed this operation, in his post-operative report, confirmed the previous ENT diagnosis of bilateral cholesteatoma. The surgeon noted that the ossicular chain of the middle ear had been destroyed, and all visible cholesteatoma was removed during the surgery. No ossicular reconstruction was done that time, but the post-operative report stated that ossicular reconstruction could be considered in the future.
Post-operative medical care was continued for claimant at the facility, and also included outside ENT consultations. Post-operative hearing tests were also performed indicating that claimant now suffers from a profound hearing loss in his right ear, with no measurable threshold appearing, and that he also suffers moderate to moderately-severe hearing loss in his left ear. The post-operative report also contained a notation that recommended a second-look procedure to be performed in the future. Claimant, however, refused to undergo this recommended procedure in August, 2000.
Barry L. Wenig, M.D., testified as claimant’s expert in the field of otolaryngology. He testified that the “urgent” request for an ENT consult made by Dr. Stornelli on July 7, 1999 was justified, as claimant’s ear infections had not responded to antibiotic treatment. Since claimant’s condition was not responsive, Dr. Wenig testified that a CT scan should have been performed, and claimant should have been examined by an ENT specialist, within three to four days of Dr. Stornelli’s request. According to Dr. Wenig, the actual delay of approximately five weeks, until August 11, 1999, for claimant’s examination by a specialist was not within acceptable medical standards. Dr. Wenig testified that the series of acute infections suffered by claimant while in DOCS custody, combined with the chronic condition of his cholesteatoma, required early diagnosis and surgery in order to preserve claimant’s hearing. He concluded that the State’s failure to provide appropriate and timely care to claimant was the proximate cause of his hearing loss, and that 75 to 80% of claimant’s hearing could have been preserved with proper and timely care.
To the contrary, Douglass Halliday, M.D., testified as the State’s expert witness in otolaryngology. He testified that there are two recommended treatments for cholesteatoma, one involving the use of antibiotic treatment and cleaning of the ears, and the other being surgical intervention. He testified that cholesteatoma is a slow-moving disease, and that a few weeks’ delay in treating the condition would not make a significant difference in the ultimate outcome of the disease. As a result, he testified that Dr. Stornelli was not justified in making his “urgent” request for an ENT consult, and that the actual time between Dr. Stornelli’s initial referral and the ENT consult was acceptable. He concluded that the treatment provided by the State was commensurate with the standards of acceptable medical practice in the central New York community.
There is no dispute that the State has a duty to provide the inmates of its correctional facilities with reasonable and adequate medical care, including proper diagnosis and treatment (Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701; Gordon v City of New York, 120 AD2d 562, affd 70 NY2d 839).
As stated at the outset of this decision, it was noted that claimant has proceeded under two distinct theories of liability, i.e., medical malpractice and ministerial neglect.
With regard to the ministerial neglect cause of action, claimant relies heavily upon the case of Kagan v State of New York, 221 AD2d 7. In that case, an inmate was awarded damages for her loss of hearing, based upon the court’s finding that the State failed to provide timely care. In Kagan, the inmate had made numerous requests to see a physician following her injury, she was not seen at sick call despite signing up for same, and she did not get an outside hearing consultation for approximately six months after her injury. Based on those circumstances, the Kagan court found that the delay in rendering any medical treatment to claimant was the proximate or aggravating cause of her injury, and the State was therefore liable. In the instant claim, however, and as set forth in detail above, claimant was regularly seen by either a nurse or staff physician, he was examined when he signed up for sick call, and his requests for treatment were honored by staff personnel. The issue in this claim therefore cannot be viewed as one of ministerial neglect towards claimant, but rather, whether the medical treatment provided to him was reasonable and adequate under the circumstances. As such, this claim should be determined under the theory of medical malpractice.
In a medical malpractice claim, the claimant has the burden of proof and must establish (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of claimant’s injury (Pike v Honsinger, 155 NY 201).
At trial, the medical experts for both claimant and defendant agreed that acceptable treatment for claimant’s cholesteatoma included either the administration of antibiotics or surgical intervention. The initial determination to treat claimant’s condition by prescribing antibiotics, therefore, cannot be questioned.
The crux of this case, however, hinges on whether appropriate and timely medical attention was provided during the course of claimant’s treatment by DOCS personnel. At the heart of this issue is the “urgent” request for an ENT consult set forth in the computer-generated referral request form, following Dr. Stornelli’s examination of claimant on July 6, 1999. While there was considerable testimony taken at trial as to whether Dr. Stornelli actually made this “urgent” request, and if so, whether it was justified, there can be no dispute that an “urgent” request did in fact exist, and that it was included in claimant’s medical records maintained by the defendant.
As mentioned by the Court at trial, this document speaks for itself, as there was no evidence at trial establishing that this request was made by mistake, nor was there any indication whatsoever that Dr. Stornelli retracted the nature of this request. As a result, the Court must determine whether the approximate five-week delay between Dr. Stornelli’s request and the actual consult with an ENT specialist was reasonable. Claimant’s expert, Dr. Wenig, testified this delay in obtaining the ENT consult for claimant, after the “urgent” request was made by Dr. Stornelli, was unreasonable and not within the standards of accepted medical practice. Furthermore, testimony at trial established that following an “urgent” consultation request, such a consultation should be performed within 72 hours. Based on the foregoing, and the testimony presented at trial, the Court concludes that the State was negligent in failing to obtain a timely, independent ENT consultation for claimant, following the examination and request made by Dr. Stornelli.
Having made this finding, however, the Court must also determine whether this deviation from accepted medical standards was a proximate cause of the hearing loss suffered by claimant (Kletnieks v Brookhaven Mem. Assn., 53 AD2d 169). In other words, claimant must establish that the delay in treatment was a proximate or aggravating cause of his hearing loss (Marchione v State of New York, 194 AD2d 851).
The expert testimony for each party was in sharp contrast on this point. Dr. Wenig, claimant’s expert, found that the five-week delay between Dr. Stornelli’s request and the actual consultation was a direct and proximate cause of claimant’s hearing loss, while Dr. Halliday, the State’s expert, did not attribute any of claimant’s hearing loss to this delay, due to the slow-moving nature of this disease.
In view of this contradictory testimony, the Court has given careful consideration to the findings and recommendations made by Dr. Woods, the ENT specialist who actually examined claimant in August, 1999. After his examination, Dr. Woods recommended surgical intervention, a CT scan, and continued antibiotic treatment. Significantly, as to the level of care required, Dr. Woods marked “routine”. In other words, the actual examination of claimant by an ENT specialist, performed pursuant to the referral, demonstrated that claimant’s condition could be treated in a routine fashion. Based on his examination, Dr. Woods did not consider that claimant’s current condition warranted urgent or emergency treatment.
Once this examination by Dr. Woods was completed, the subsequent treatment by State personnel and physicians, including the continuation of antibiotics treatment and, eventually, the CT scan and the tympanomastoid surgery, was appropriate and in compliance with the recommendations made by Dr. Woods.
Accordingly, even though the Court found that the State was negligent in not processing the request for an ENT consult in a timely manner, as required by its own protocol, the Court also finds, based upon the results of the examination by Dr. Woods, that the lapse in time between the request and actual examination was not a proximate cause of the injuries sustained by claimant. Notwithstanding the fine efforts made by claimant’s able counsel, based on the proof presented at trial, the Court must conclude that claimant has not sustained his burden of establishing a proximate cause between the care and treatment provided by the State and his hearing loss.
Based on the foregoing, therefore, this claim is hereby dismissed.
Any motions not heretofore ruled upon are hereby denied.

June 30, 2005
Syracuse, New York

Judge of the Court of Claims