New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2005-010-045, Claim No. 104211


Synopsis


Inmate med mal. Court credited defendant's expert testimony.

Case Information

UID:
2005-010-045
Claimant(s):
ORLANDO GONZALEZ
Claimant short name:
GONZALEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104211
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
STEVEN BENNETT BLAU, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Leslie Stroth, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 23, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant seeks damages for alleged medical malpractice that occurred during his incarceration within the State prison system. Specifically, he contends that, despite his continual complaints of rectal pain and bleeding, there was an unreasonable delay in diagnosing him with rectal cancer. He also contends that he should have been sent for an endoscopy in 1997 which would have detected precancerous polyps or lesions while they were treatable and that the delay in diagnosis resulted in his need for chemotherapy and three surgeries which included a colostomy. The claim was heard in a unified trial.
Notice of Intention
On August 25, 1999,
claimant, then an inmate proceeding pro se, served a Notice of Intention upon defendant alleging that, during claimant's incarceration at Sing Sing Correctional Facility (Sing Sing), defendant failed to send claimant for a test which would have diagnosed and arrested his disease (Court Ex. 1). The Notice of Intention stated that the claim arose "at around May 20, 1999, this. is a continual chain of events [sic]" (id.).
Claim
On April 30, 2001,
claimant served defendant with a claim. On May 1, 2001, the claim was filed. The claim alleged, "[t]his claim arose at or around May 20, 1999, the original complain [sic] and suffering dates back to 6/11/97, this is a continual chain of events that transpired throughout a period of time" (Court Ex. 1). The claim states that at or around June 11, 1997, claimant complained of bleeding in the rectum area and that he was improperly diagnosed as suffering from a hemorrhoid condition and treated accordingly. Claimant continued to suffer pain and bleeding and was given a CT scan at St. Agnes Hospital. The CT scan was not clear and the hospital suggested that defendant send claimant for an endoscopy examination. Claimant contends that defendant's failure to send him for an endoscopy resulted in the failure to detect precancerous polyps or lesions in his colon and rectum area while they were treatable. Claimant further contends that such failure resulted in claimant's need for chemotherapy and three surgeries, including a colostomy bag. On June 19, 2001, Steven Bennett Blau, Esq. filed a Notice of Appearance indicating that he had been retained to represent claimant.
Pretrial Motions
Defendant moved for summary judgment dismissing the claim as untimely because

the Notice of Intention was received by the Attorney General's office on August 25, 1999, 97 days after the alleged date of accrual, May 20, 1999. Claimant's attorney cross-moved seeking, inter alia, an order striking defendant's fifth affirmative defense which asserted lack of jurisdiction on the ground that the Notice of Intention was untimely (Court Ex. 1).
Claimant argued that defendant should be estopped from raising lack of jurisdiction due to the untimeliness of service because defendant, who is in control of inmate mail, failed to effectuate the mailing in a timely manner. Claimant submitted a disbursement request for certified mail, return receipt requested, which was dated August 19, 1999 and indicated a disbursement from claimant's inmate account in the amount of $2.98. The Notice of Intention was not postmarked until August 23, 1999. Two days later, it was received by the Attorney General's office. Additionally, claimant argued that in June 2001, he retained an attorney who obtained claimant's complete medical file in discovery, which indicated that there was a continuous course of treatment between April 1996 and February 2000. Thus, the Notice of Intention received by defendant on August 25, 1999 was timely.
By decision filed January 22, 2003,
this Court denied, without prejudice, defendant's summary judgment motion seeking dismissal. The Court reasoned that discovery had not yet been completed and claimant's unrefuted affidavit detailing his medical treatment indicated that he may be entitled to a tolling of the statute of limitations. Claimant's cross motion seeking to strike defendant's fifth affirmative defense was similarly denied without prejudice and with leave to renew.
Neither
defendant nor claimant renewed the motions prior to trial. Nor did claimant seek leave to amend the claim prior to trial. Since neither application was renewed prior to trial, the Court proceeded to hear the evidence at trial regarding the issue of claimant's purported continuous treatment.
Analysis
Preliminarily, it is noted that the requirements of Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance (
see Finnerty v New York State Thruway Auth., 75 NY2d 721). Court of Claims Act §11(a)(i) provides, "[s]ervice by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general " [emphasis added]. Accordingly, if the date of accrual was May 20, 1999, as alleged, then the Notice of Intention had to be received by the Attorney General's office on or before August 18, 1999. Claimant's disbursement form submitted in support of claimant's cross motion is dated August 19, 1999. Thus, any delay in defendant's processing of claimant's request for mailing was inconsequential because, at the time of the request, it was already too late to serve the Attorney General's office with a Notice of Intention. Thus, claimant cannot avail himself of the doctrine of estoppel and the Notice of Intention was jurisdictionally defective (see Rivera v State of New York, 5 AD3d 881).
Claimant's attorney also argued that the date of "accrual was the diagnosis of claimant's rectal cancer on May 10, 1999" (Court Ex. 1, Claimant's Affirmation in Opposition, ¶8). The date of accrual for a medical malpractice claim is generally when the alleged malpractice occurs (see Massie v Crawford, 78 NY2d 516, 519). Here, it is alleged to have occurred on May 10, 1999. Claimant also alleges an accrual date in 1997, when defendant failed to order an endoscopy. Under the aforementioned analysis, the Notice of Intention was untimely under either date of accrual.
Claimant's attorney argued in his cross motion that it was not until he was retained that claimant's complete medical file was obtained and that it was revealed that there was a continuous course of treatment "between April 1996 and February 2000" (Court Ex. 1, Claimant's Affirmation in Opposition, ¶ 6). Thus, claimant's attorney argued that the statute of limitations was tolled until February 2000 when the treatment was completed. In the opposition to claimant's cross motion, defendant's attorney correctly noted that, even accepting February 2000 as the date of accrual, a claim of medical malpractice must be commenced within two years and six months of the date of accrual (CPLR 214-a; Court of Claims Act §10[6]); thus the statute of limitations would have expired in August 2002. Therefore, a late claim application brought after August 2002 would be untimely and the Court would be without jurisdiction to grant such an application.[1]
In addressing
claimant's argument that the continuous treatment doctrine tolled the statute of limitations, the Court notes that "[t]he doctrine rests on the premise that it is in the patient's best interest that an ongoing course of treatment be continued, rather than interrupted by a lawsuit, because ‘the doctor not only is in a position to identify and correct his or her malpractice but is best placed to do so' " (Nykorchuck v Henriques, 78 NY2d 255, 258, quoting McDermott v Torr, 56 NY2d 399, 408, see also Toxey v State of New York, 279 AD2d 928, at 928). The filing of the Notice of Intention was an initiation of legal process which clearly severed any continuing relationship of trust in the physician-patient relationship and ended any continuous treatment tolling at that point (see O'Connor v State of New York, 15 AD3d 827; Toxey v State of New York, supra at 929). "Even though claimant had no choice but to submit to treatment *** during his continued period of incarceration, his unequivocal act of signaling legal proceedings by the filing of the notice of intention to file a claim sufficiently memorializes the end of confidence in his course of treatment ***" (O'Connor v State of New York, supra at 828).
The Trial
At trial,
defendant argued that claimant is not entitled to a tolling under the continuous treatment doctrine because there was no treatment between 1997 and 1999 and, in any event, a biopsy was done on May 9, 1999 and thereafter claimant learned that he had cancer and should have filed a notice of intention or claim within 90 days. Defendant also contends that the claim sets forth the proximate cause of claimant's injury as defendant's failure to order an endoscopy in 1997. Yet, there was no evidence that claimant had a tumor in 1997 since his physical examination and CT scan were normal.
At trial,
claimant moved to conform the pleadings to the proof.
Claimant testified that he first experienced rectal pain and bleeding in July 1997 while he was incarcerated at Sing Sing. He initially saw a nurse who prescribed Tylenol and ibuprofen. Sometime between June and August,[2] a doctor performed a digital examination of claimant's rectum and prescribed a hemorrhoidal ointment. Claimant also stated that he had a CT scan in June 1997 because the problems continued. According to claimant, after the CT scan he learned that the CT scan was negative, but there was a problem with his stool and he should have an endoscopy. Claimant maintains that in July he continued to constantly complain because of the pain and bleeding and he was suffering from constipation. Claimant recalled receiving a laxative that had no effect.
In January 1998,
claimant was transferred to Arthur Kill Correctional Facility where he complained to nurses of rectal pain and bleeding. At Arthur Kill, he never saw a doctor and never had a physical examination of his rectum.
In April 1998,
claimant was transferred to Auburn Correctional Facility. He complained to nurses about constipation, rectal pain, and bleeding. He was given Tylenol and ibuprofen. His requests to see a doctor were denied.
In February 1999,
claimant was transferred to Cape Vincent Correctional Facility where he first described his medical problems at the intake interview. Between February and May 1999, claimant went to the infirmary between 20 and 25 times, where he continued to voice the same complaints. Claimant was advised that he had hemorrhoids and continued to receive Tylenol and ibuprofen. Claimant did not recall being examined by Nurse Knight in April 1999 but, did remember providing a stool sample to some nurse around that time.
According to
claimant, it was not until April 14, 1999 that he saw a doctor who performed a digital examination. Over the two-year period, claimant maintains that he performed a digital examination without gloves on himself daily. His condition had worsened, he saw a lot of blood and he was in tremendous pain that had spread to his buttocks. On May 8, 1999, he was admitted to Samaritan Medical Center where he underwent surgery under general anesthesia. After a biopsy, claimant learned that he had cancer of the rectum and an infection on the right side of his buttocks. On May 18, 1999, claimant was admitted to the Hepburn Medical Center (Hepburn) for treatment of the cancer. He underwent a second surgery to insert a colostomy bag. He had the colostomy bag for six months.
After his hospital stay, claimant was transferred to the infirmary at Riverview Correctional Facility so that he could be closer to Hepburn for ongoing treatment. During the six months that claimant had a colostomy bag, he had to maintain the site opening and change the bag eight to ten times a day. He described the area as having a foul odor and said the bag exploded on him in bed several times. During three and a half months of that period, claimant also had chemotherapy and radiation five days a week. This treatment left him weak, uncomfortable, nauseous and dizzy. To this day he continues to have rectal bleeding and bowel movements three to four times a day. Due to the radiation, he does not always have control of his bowels.
Dr. Alan Turnball, a retired surgical oncologist who currently maintains an office at Sloan Kettering Memorial Hospital, testified on behalf of
claimant. Turnball was board certified in general surgery and did a fellowship in surgical oncology. He explained that there is no board certification for surgical oncology. As a surgical oncologist, Turnball has had experience dealing with all types of cancers. He had been a full professor and attending physician at Cornell Medical School until his retirement in 2002.
Turnball reviewed
claimant's medical records and concluded that the medical treatment provided by defendant deviated from prevailing standards of care and was a factor in his injuries. Starting on March 24, 1997, claimant complained of a penile rash and hemorrhoids and was given an antifungal cream (Ex. 3, p 331). Four days later, he complained of constipation and was given a laxative. Turnball explained that external hemorrhoids can be diagnosed from a visual observation; however to discover internal hemorrhoids, a digital examination is usually done, followed by an examination with an anoscope which allows a physician to look inside the patient. This is generally performed in a doctor's office. If necessary, further review would be conducted by a proctologist or gastroenterologist. In Turnball's view, claimant did not need a specialist initially, but the fact that no one even used an anoscope was a departure from good medical care.
Claimant was treated with laxatives through May 1997 until a questionable mass was noted. Following this discovery, an abdominal and pelvic CT scan was ordered and finally taken on June 23, 1997. The CT scan report revealed that claimant's pelvis was normal but, there was no comment concerning his rectum because it was filled with stool. The report further read, "If there is further concern for rectal lesion, endoscopy may be of help in further evaluation" (Ex. 5). This test was never performed.
Two years later, on April 14, 1999, Dr. Rosner detected an anal rectal mass. There was no indication of infection of hemorrhoids (Ex. 3, p 339). Rosner ordered a GI consult. When nothing was done by May 5, 1999, Rosner wrote a second referral. Further inaction resulted in a third request. Turnball considered this a long delay considering the nature of the problem.

In May 1999,
claimant was diagnosed with an anal tumor. While there are many instances in the medical records where the terms anus and rectum were used interchangeably, Turnball explained the difference. The rectum leads to the anus which is a muscular tube at the end of the gastrointestinal tract. Notably, the two areas are lined with different types of cells. Claimant was diagnosed with "poorly differentiated squamous carcinoma" which indicated that the cancer was in his anus. Turnball maintained that a tumor in that spot could have been touched digitally (Ex. 3, p 8). Turnball conceded that the significance of the term poorly differentiated meant that the cancer was aggressive.
Considering claimant's complaints of rectal pain and bleeding spanned two years, Turnball considered it a departure from acceptable medical standards not to have investigated further. Medical personnel should have taken steps to rule out other problems by performing a digital examination of claimant followed by the use of instruments at a higher level in his gastrointestinal tract. When the tumor was finally diagnosed in May 1999, it was three centimeters by two centimeters and should be classified a T-2 tumor. Turnball concluded that it would have taken months to reach that size, but he could not determine when it first began growing. Had the tumor been discovered earlier, more aggressive treatment might have been done. Claimant could have had a local incision with chemotherapy. Instead, a perianal abscess, an infection involving surrounding tissue, developed. There was, however, no way of knowing when the abscess developed since there was no reference to it by Dr. Rosner on April 14, 1999. Turnball opined that without the infection, the colostomy might have been avoided. Claimant's medical records reveal that on May 26, 1999, the colostomy bag came loose and its contents spilled. On November 24, 1999, another surgical procedure under general anesthesia was necessary for closure of the colostomy.
Claimant's medical records indicate that on December 22, 1999, he complained of fecal incontinence, diarrhea and rectal pain. On February 16, 2000, he was diagnosed with radiation proctitis, a common side effect of radiation where the lining of the rectum becomes inflamed, causing bleeding, mucus and liquid stool. In terms of the cancer, Turnball testified that claimant no longer has the anal carcinoma and his prognosis is excellent.
On cross-examination, Turnball conceded that
claimant's medical records reveal that he complained about hemorrhoids but not blood in March and April 1997. In May 1997, claimant was sent for a CT scan shortly after a questionable mass was discovered. Turnball also conceded that there was nothing in claimant's medical records to show that he provided the stool sample that had been requested of him.
The examination before trial testimony of Dr. Elizabeth A. Gaary, the radiologist who reviewed the June 1997 CT scan, was received into evidence (Exs. E, G). She testified that the scan was unremarkable or negative. When asked why she wrote, "If there is concern for a rectal lesion, endoscopy may be of help in further evaluation" (Ex. 5), she answered, since the requisition said, "they may have felt a mass in the suprapubic, which is anteriorly, and typically, I like to tell the clinician or the doctor who ordered it that if they have any other reason on a clinical ground to think that the patient has a mass *** that they could take it a little further and do an endoscopy" (Ex. G, p 21). Gaary further explained that she was not recommending an endoscopy and that if she had, it would have stated "recommended" in her report (
id. at 22).
Nurse Brenda Knight, a staff nurse at Cape Vincent Correctional Facility, testified that she is a registered nurse and had been trained to perform rectal examinations. She covered sick calls at the facility infirmary.
On April 2, 1999, claimant presented at the infirmary for an emergency sick call complaining of bleeding hemorrhoids and rectal pain. Referring to claimant's medical records, Knight testified that she did a rectal examination, but found no evidence of blood or hemorrhoids. However, due to claimant's complaints, Knight gave claimant stool sample cards and instructed him to bring them back to the infirmary so that she could do a further examination (Ex. 3, p 340). There is no indication in the medical records that claimant ever produced a sample. If claimant has produced a sample, it would have been noted in the medical records. Knight further testified that if she needed to communicate with a patient in Spanish, interpreters were available and she would have called one.
Claimant was next at the infirmary on April 12, 1999 voicing similar complaints. He was referred to Dr. Rosner.
Dr. Mark Korsten, who is board certified in internal medicine and gastroenterology, offered expert testimony on behalf of
defendant. Korsten, a graduate of Yale Medical School, is the Chief of Gastroenterology and Director of the Medical Residency Program at the Bronx Veterans Administration Medical Center (VA Center). He completed his postgraduate studies at Mount Sinai Hospital and is now a full professor at the Mount Sinai School of Medicine. Korsten explained that internists and gastroenterologists are on the front lines of diagnosing cancer. Once a diagnosis is made, treatment is then carried out by a number of other specialists. Typically, a surgical oncologist receives a patient after a diagnosis has been made. Korsten stated that he is also experienced in the classification and staging of cancers. At the VA Center, after a patient is diagnosed with cancer, a Tumor Board holds meetings to discuss the course of treatment. Korsten is a participant on the board for his own and other patients. Korsten noted that anal cancer is one of the least common cancers.
Korsten opined that the medical treatment provided by the Department of Correctional Services (DOCS) to
claimant was appropriate and timely without any departure from acceptable standards of medical care. Referring to claimant's medical records, Korsten noted that claimant had made sick call visits on March 24 and 28, 1997, complaining of hemorrhoids and constipation. In Korsten's view, the laxatives and hemorrhoid ointment dispensed were the proper response. After claimant returned on April 7 and then again on April 10, a rectal exam was performed. On his May 29, 1997 sick call visit, an abdominal examination revealed a possible mass above claimant's pubic bone. A CT scan was taken which was normal and showed no evidence of a mass. In contrast to Turnball, Korsten maintained that a follow-up endoscopy was not necessary given claimant's complaints were only of constipation and not bleeding. Korsten explained that there are risks in the more invasive test and it is not warranted when no abnormality of the rectum is shown. The notation on the CT report regarding stool in the rectum was not significant since there is always stool in the rectum when a CT scan is performed because there is no preparation for the test.
Throughout 1998,
claimant's complaints to DOCS personnel remained the same without any mention of bleeding. In the absence of bleeding, Korsten maintained it was appropriate to treat claimant symptomatically with local hemorrhoid creams and laxatives.
Korsten agreed with Turnball that there was no tumor present in 1997. Korsten based his opinion to some degree on the
tumor's appearance under the microscope in 1999. The pathology report described the cells as poorly differentiated which is characteristic of a fast growing, aggressive tumor.
When
claimant did complain of bleeding on April 2, 1999, Knight performed a more comprehensive rectal examination. After that examination did not reveal any blood, she gave claimant occult blood cards and asked him to provide stool samples. There was no indication that claimant ever returned the stool samples although he went to the infirmary on April 12 and was seen by Dr. Rosner on April 14, 1999. Rosner did a rectal examination, felt a firm mass and referred claimant for a gastrointestinal consult which was set for May 11, 1999. Korsten testified that an evaluation completed within 30 days was reasonable since cancer was only one possible diagnosis and one month would not have changed claimant's prognosis.
Although
claimant was scheduled for a May 11, 1999 consult, on May 8, 1999 he presented at the infirmary with bleeding, abdominal pain and swelling of the rectum and buttocks. It was apparent that an abscess had developed and claimant was hospitalized. It is impossible to determine exactly when the abscess developed but, considering the lack of tenderness on April 2, 1999, it was unlikely to have been present at that time.
Korsten explained that a perianal abscess develops when bacteria are introduced into the area. In
claimant's case, the infection may have been caused by the perianal tumor deforming the anal glands or by claimant's daily digital examinations of himself with his ungloved fingers. Abscesses develop gradually over time. The biopsies done in conjunction with the drainage of the abscess revealed the presence of the cancer.
Korsten opined that, based upon the tumor's appearance under a microscope and the fact that it was highly aggressive and highly differentiated, the tumor was not present in 1997
. He explained that there is no way of determining precisely when the tumor could have been first palpated. Korsten also opined that if the tumor was present April 14, 1999, it was probably present April 2, as well. Given the nature of the fast-growing cancer, it was impossible to know its size on April 2, 1999. There is no indication in the record that the examination by Knight was done improperly. The fact that Knight mentions that there was no blood in claimant's stool, suggests that she inserted her finger high enough.
Korsten opined that the subsequent events in
claimant's case indicate that the diagnosis was made early enough to effectuate a cure. Claimant received radiation and chemotherapy and the cancer has been eradicated. He has been cancer free for five years, which is considered cured. Even if the cancer had been diagnosed April 2 rather than in early May, the treatment and prognosis would have been the same. Korsten agreed with Turnball that claimant's cancer, because of the size of the tumor, should have been staged T2 instead of T1. Nonetheless, the therapy and prognosis were the same for both types.
Korsten disagreed with Turnball who testified that, had the cancer been detected earlier, a local incision would have been possible. Even the smallest tumor involves the perianal sphincter and an incision could result in loss of muscle control.

According to Korsten, the colostomy was the recommended course to minimize the discomfort of radiation, particularly where there was an infection.
There was no way to know when the abscess developed, but the colostomy could still be useful during radiation. The colostomy spared irritation of the lower bowels by diverting the fecal stream. Korsten noted that the development of radiation proctitis was a frequent side effect of radiation and was not caused by the colostomy. Here, he maintained, it was evident that the colostomy actually lessened the symptoms of the radiation proctitis because, when the colostomy was closed and continuity reestablished, the symptoms of the radiation proctitis became worse.
Korsten agreed that if
claimant had repeatedly complained to DOCS medical personnel of bleeding, a further examination should have been done. However, Korsten relied on the absence of any notes concerning bleeding in claimant's medical records to conclude that such complaints were not made and accordingly, the medical treatment rendered by DOCS was appropriate. Korsten rejected the notion that the absence of any notes regarding bleeding was due to a language problem. As a clinician, Korsten relied on the objective data contained in the medical records.
Dr. Marc Citron, who is board certified in internal medicine and medical oncology, offered expert testimony on behalf of
defendant. He has served as the head of oncology at Long Island Jewish Hospital and has been a full professor of medicine at the Albert Einstein Medical School.
Citron opined that the failure to perform an endoscopic examination in 1997 was not a departure from the standard of care because there was no clinical indication to do such test. The CT scan had been ordered because of the possibility of a suprapubic mass, which was not located near the rectum or anus. The scan was negative and
claimant had already had a rectal examination. The purpose of the CT scan in 1999, after claimant's tumor was diagnosed, was to determine the extent of the disease and to ascertain if it had spread outside the anal cavity. Citron also concluded that the failure to perform a rectal endoscopic examination of claimant in 1998 was not a departure from the standard of care. Claimant's two visits to the infirmary that year did not raise any issues that would have warranted such exams.
Citron testified that, although there was no way to determine exactly when the tumor began growing, its size when the cancer was diagnosed in May 1999 indicated that the tumor was probably present for several months. Citron explained, however, that the presence of a tumor does not mean that it is clinically apparent or detectable. There are many factors that affect whether a tumor is palpable.

Citron disagreed with Turnball as to the possibility of treating
claimant's cancer only surgically. Only a highly select group of patients, with well differentiated squamous cell cancers, would be candidates for surgery alone. Contrastly, claimant had a poorly differentiated squamous cell cancer which is almost always treated with radiation and chemotherapy, as was done here. If a local excision were done in a poorly differentiated cancer, there would be a risk that the cancer could spread beyond the area excised and there could be a recurrence. Additionally, to excise the cancer, surgery is extensive because you need to remove the tumor and the normal tissue around the tumor. This could lead to a large removal of the colon and result in a permanent colostomy. Moreover, claimant was a young man and chemotherapy and radiation gave him the best chance for a cure.
Citron further explained that, in
claimant's case, there is conflicting information regarding the exact location of the tumor. There are discrepancies in the medical records that suggest the tumor extended into the rectum, which would be higher in the canal and not reachable on a digital exam. This may explain why it was not detected by Nurse Knight on April 2, 1999. In Citron's view, even if Knight had not been trained to detect tumors, she had performed a sufficient number of examinations to learn the difference between a normal and abnormal condition.
Citron also disagreed with Turnball's opinion that, if the cancer had been detected six months earlier, the colostomy could have been avoided. To the contrary, a colostomy could have been required at anytime, since infections often develop after treatment with radiation and chemotherapy commences. Additionally, the delay from April 14, 1999 until the second consult scheduled for May 11, 1999, was not a departure from good and appropriate medical care, but rather a common or typical waiting period for patients to see a specialist. Moreover, when the abscess became severe on May 8, 1999,
claimant was admitted to the hospital. The delay in diagnosis had no impact on the eventual treatment of the cancer.
According to Citron, almost all patients receiving radiation and chemotherapy develop inflamation of the rectum and radiation proctitis. Even if
claimant's treatment had started earlier, he could have developed radiation proctitis. Most importantly, claimant's prognosis is excellent and he is considered cured since five years have passed since any cancer was detected.
Analysis
The Court has considered all of the evidence, including listening to the witnesses testify and observing their demeanor as they did so, and finds that
claimant has failed to establish entitlement to a tolling of the statute of limitations based upon a continuous course of treatment. Thus, the claim warrants dismissal on jurisdictional grounds. Moreover, claimant has failed to meet his burden of establishing that the medical treatment he received was a departure from good and accepted medical practice and was a proximate cause of his alleged injuries. Accordingly, defendant's motion to dismiss, upon which decision was reserved, is hereby GRANTED and all other motions not heretofore ruled upon are hereby DENIED.
It is well settled that the State has a duty to provide ordinary and appropriate medical care and treatment to its inmates (
see Mullally v State of New York, 289 AD2d 308). The theory of simple negligence is restricted to those cases where the alleged negligent acts are readily determinable by the trier of the facts on common knowledge (see Weiner v Lenox Hill Hosp., 88 NY2d 784; Rey v Park View Nursing Home, 262 AD2d 624). However, where the treatment received by the patient is an issue, the more specialized theory of medical malpractice must be followed (see Fragosa v Haider, 17 AD3d 526).
To establish a claim for medical malpractice, claimant has the burden of proving, by a preponderance of the credible evidence, that defendant departed from good and accepted medical practice and that such departure was a substantial factor or a proximate cause of the claimed injury. "[A] mere possibility of cure does not satisfy a prerequisite to liability" rather it must be more probable than not that the claimed injury was caused by defendant's malpractice (Mortensen v Memorial Hosp., 105 AD2d 151, 158, see also Candia v Estepan, 289 AD2d 38). A departure from good and accepted medical practice cannot be inferred from expert testimony; rather the expert must expressly state, with a degree of medical certainty, that defendant's conduct constitutes a deviation from the requisite standard of care (see Stuart v Ellis Hosp., 198 AD2d 559).
Claimant had a duty to make defendant aware of his symptoms (see Ogle v State of New York, 191 AD2d 878 [inmate's failure to advise DOCS physicians of one part of his medical history and his uncooperative conduct contributed to delay in diagnosis and in failing to continue with prescribed treatment]). The instant case presents credibility issues as to whether claimant in fact suffered from rectal bleeding and whether defendant was aware of such symptoms by way of claimant's alleged continuous complaints to defendant prior to April 2, 1999. Claimant's attorney noted in his post-trial memorandum at page 12, "[t]he critical issue in this lawsuit is whether Claimant made continuous complaints of rectal pain and bleeding to DOC [New York State Department of Correctional Services] healthcare providers during the period July 1997[3] through May 1999 [and that] [c]oncededly, the DOC records do not reflect such complaints to that extent (see Exhibit 3)." Claimant's expert testified that based upon claimant's complaints of rectal bleeding for two years, it was a departure from acceptable medical standards not to have investigated further. However, on cross-examination, claimant's expert conceded that, while claimant's medical records indicate complaints of hemorrhoids, they do not indicate complaints of blood in March and April 1997. Defendant's expert, Dr. Korsten, agreed that if claimant had repeatedly complained to DOCS medical personnel of bleeding, then a further examination should have been done. Korsten, however relied on the absence of any notes concerning bleeding in claimant's medical records to conclude that such complaints were not made and accordingly, the medical treatment rendered by DOCS was appropriate. Korsten rejected the notion that the absence of any notes regarding bleeding was due to a language problem. As a clinician, Korsten relied on the objective data contained in the medical records.
Additionally, Nurse Knight testified that interpreters were available to DOCS medical personnel and were called if needed. The Court notes that
claimant's complaint of blood was documented in his medical records on April 2, 1999; thus there was no language problem between claimant and DOCS medical personnel on that occasion and the Court finds it highly unlikely that, if claimant had indeed suffered and complained of blood for two years, it would not be documented in his medical records. Notably, at trial claimant used a Spanish interpreter; however claimant often responded in English to the questions posed to him. He also testified that during his incarceration he took educational classes, some of which were offered in English and others which were offered in Spanish. He stated that he reads and speaks English.
The Court further notes that Knight's examination on April 2, 1999 did not reveal any evidence of blood. On that date,
claimant was given stool sample cards and instructed to return them for further examination and evaluation. According to claimant's medical records, the sample was never produced and it was claimant's duty to do so and not to frustrate or delay any diagnosis or treatment (see Ogle v State of New York, supra). The Court finds that, on the record before this Court, it was not established that claimant presented DOCS medical personnel with continuous complaints of rectal bleeding for a two-year period prior to April 2, 1999 (see Marchione v State of New York, 194 AD2d 851 [sick-call slip did not indicate emergency situation]). Accordingly, the Court finds that the testimony of defendant's experts established that claimant was provided with adequate medical care given the symptoms he presented to DOCS medical personnel prior to and including April 2, 1999. (see Cauley v State of New York, 224 AD2d 381 ["despite the expert testimony of claimant's medical witnesses that the delay in surgery was excessive, in the absence of proof that Sing Sing officials were aware of the urgency of the situation, the preponderance of the credible evidence established that they ‘provided the claimant with prompt and adequate medical care'."]).
Both of
defendant's experts opined that claimant's condition as presented to DOCS medical personnel did not warrant an endoscopy. Specifically, Korsten testified that, without a complaint of bleeding, an endoscopy was unnecessary and it was appropriate to treat claimant symptomatically. Korsten explained that there were risks associated with a more invasive test and that claimant's condition did not warrant an endoscopy. Similarly, Dr. Citron testified that the failure to perform an endoscopy in 1997 or 1998 was not a departure from the standard of care because there was no clinical indication to do such test. The Court rejects the testimony of claimant's expert that the failure to use an anoscope or to perform an endoscopy was a departure from the appropriate standard of care (see Stuart v Ellis Hosp., supra [expert's opinion that patient should have had a more thorough examination including x-rays was insufficient to establish a prima facie case of medical malpractice]).
The Court also rejects
claimant's argument that there was an unreasonable delay in diagnosis (see Kaminsky v State of New York, 265 AD2d 306 [State's failure to diagnose inmate's condition did not constitute medical malpractice and was not a proximate cause of inmate's death; nor would earlier diagnosis have allowed another course of treatment]). Additionally, claimant failed to show proximate cause, i.e., that any of such delay negatively impacted claimant in the treatment received (see Naughton v Arden Hill Hosp., 215 AD2d 810 [even assuming defendant committed malpractice in its failure to diagnose and admit patient to hospital, there was no proof of proximate cause, i.e., that, had the patient been admitted, the risk of a heart attack would have been prevented or lessened]; Brown v State of New York, 192 AD2d 936 [no proof that delay in treatment contributed to the loss of claimant's larynx]). Moreover, claimant did not establish that any delay in diagnosis and treatment deprived claimant of an appreciable chance of avoiding any loss suffered.
Claimant was seen by Dr. Rosner[4] on April 14, 1999 and was referred for a GI consult on May 11, 1999. Dr. Korsten testified that an evaluation completed within 30 days was reasonable since cancer was only one possible diagnosis and one month would not have changed claimant's prognosis. Similarly, Dr. Citron characterized one month as a common or typical waiting period for patients to see a specialist and not a departure from good and appropriate medical care. Citron further testified that one month would not have had any impact on the eventual treatment of the cancer.
Both
claimant's and defendant's experts agreed that the cancer was aggressive and that it could not be determined with certainty as to when it first began growing. Citron further explained that the presence of a tumor for several months does not mean that it was clinically apparent or detectable for several months. Many factors affect whether the tumor is palpable. Citron further noted that there were discrepancies in the medical records as to the exact location of the tumor and that if it was higher in the canal it might not have been reachable in a digital exam. Additionally, Korsten testified that it was impossible to determine when the abscess developed but, given claimant's examination on April 2, 1999 and lack of tenderness, it was unlikely to have been present at that time. Korsten further opined that the infection may have been caused by claimant's daily self-examination with his ungloved fingers.
Both
defendant's experts disagreed with claimant's expert that earlier detection of the cancer would have enabled claimant to avoid chemotherapy and a colostomy. Specifically, Citron testified that only a select group of patients with well differentiated squamous cell cancers would be candidates for surgical incision and claimant had poorly differentiated squamous cell cancer. Citron testified that claimant's type of cancer is almost always treated with radiation and chemotherapy and that it was especially appropriate in claimant's case because he was young and it gave him the best chance for a cure. Korsten's testimony was consistent with Citron's and Korsten further testified that a surgical incision to address the cancer would impact the perianal sphincter and could result in a loss of muscle control.
With regard to the colostomy, Korsten testified that it was the appropriate procedure to minimize the discomfort of radiation, particularly where there was an infection and that radiation proctitis is a common side effect of radiation and is not caused by the colostomy. Citron further testified that even if
claimant's treatment had started earlier, he could have developed radiation proctitis. Korsten maintained that the colostomy actually lessened the symptoms of the proctitis because when the colostomy was closed and continuity was reestablished, claimant's symptoms of the proctitis worsened.
Finally,
defendant's experts testified that earlier detection would not have changed claimant's treatment and that as a result of the treatment, claimant has been cancer free for five years and all the experts agree, even claimant's own expert, that claimant's prognosis is excellent.
In sum, t
he Court finds the testimony of defendant's experts to be more convincing than the testimony of claimant's expert (see Scariati v St. John's Queens Hosp., 172 AD2d 817 [trier of fact was free to reject conflicting testimony regarding causation]). Claimant did not establish that earlier testing would have had any effect on claimant's condition or treatment.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 104211.

August 23, 2005
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] Notably, claimant's attorney was retained on June 19, 2001 and, at that time, a late claim application would have been timely.
[2] Claimant's testimony regarding the chronology of events was confusing and inconsistent.
[3] Apparently, claimant has abandoned any allegation of complaints made prior to July 1997.
[4] The Court did not draw any adverse inference from defendant's failure to call Dr. Rosner to testify. Defendant consented to claimant's use of Dr. Rosner's deposition at trial. Claimant, however, never offered it into evidence; nor did claimant seek to have Dr. Rosner produced at trial.