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.
ROBERT JAMIE LOWE
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
NICHOLAS V. MIDEY JR.
BUTLER & BUTLER, P.C.
BY: Earl D. Butler, Esq. & Matthew C. Butler, Esq.,Of Counsel.
HON. ELIOT SPITZER
BY: Roger B. Williams, Esq.,
Assistant Attorney GeneralOf Counsel.
June 30, 2005
9 MISC 3D 1128(A)
AFFIRMED 35 AD3D 1281 4TH DEPT 2006
See also (multicaptioned
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.
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
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.
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.
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
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,
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
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).
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
Based on the foregoing, therefore, this claim is hereby
Any motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
June 30, 2005
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims