LONG v. THE STATE OF NEW YORK , #2006-010-028, Claim No. 107435
Award for injury to inmate claimant’s zygomatic arch. Delay in treatment
contributed to claimant’s pain and suffering
JONATHAN D. LONG
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Terry Jane Ruderman
ROBERT W. NISHMAN, ESQ.By: Schneider, Kaufman & Sherman, P.C. Howard B. Sherman, Esq., Of Counsel
HON. ELIOT SPITZER
Attorney General for the State
YorkBy: Judith McCarthy, Assistant Attorney General
November 14, 2006
See also (multicaptioned
On May 30, 2002, during claimant’s incarceration at Sing Sing
Correctional Facility (Sing Sing), claimant was hit on the left side of his face
by an errant softball and sustained comminuted depressed fractures of his left
zygomatic arch. Claimant alleges that defendant failed to provide him with
adequate medical care. Specifically, claimant contends that the delay in
surgically addressing his fractures until more than six months post-injury
necessitated a more complicated surgery, caused him increased pain and
suffering, and resulted in permanent harm.
Claimant testified that on the evening of May 30, 2002, he was taken to the
Sing Sing infirmary where he was observed by a doctor via a video-monitor
connection. Claimant remained at the infirmary overnight and was given ice and
pain medication. The next morning, x-rays were taken at the facility and
revealed fractures of claimant’s zygomatic arch. Claimant was transported
to St. Agnes Hospital (St. Agnes) where he was seen by a doctor and additional
x-rays were taken. Claimant spent the night at St. Agnes and the next day he
was discharged to the Sing Sing infirmary. At the infirmary, claimant was given
ice and pain medication. Additionally, claimant’s blood sugar was
monitored because he was diabetic.
On June 3, 2002, claimant was released from the infirmary and returned to
general population. Claimant continued to feel pain. He had difficulty eating
and this affected his blood sugar levels. On June 5, 2002, claimant went to see
Dr. Soni, a dentist at Sing Sing, because claimant had difficulty opening and
closing his mouth. Claimant explained that he had to stick food into his mouth
with his fingers in an attempt to eat (T:31; Ex. B, p
Claimant testified that even water
dripped out of his mouth because he could not keep his mouth closed properly
(T:31). According to claimant, Soni “really didn’t do anything.
She didn’t want to go in and look inside my mouth because of the fact of
the break. She didn’t want to like mess it up” (T:31-32). Claimant
explained to Soni the trouble he was having with food and Soni suggested
claimant drink Ensure and Carnation Instant Breakfast. According to claimant,
he saw Soni numerous times over several weeks, but Soni never really examined
claimant or treated him (T:37-38). On June 19, 2002, claimant was examined by
another dental care provider at Sing Sing. Claimant’s condition had not
improved and he continued to experience pain and had difficulty eating and
moving his jaw. Therefore, claimant asked Soni if he could be seen by a doctor
at Westchester County Medical Center. Claimant also testified that he could not
sleep on his left side and could not open his mouth. He had also lost 25 to 30
pounds since his injury.
In August 2002, claimant was examined by Dr. Brady at the Westchester County
Medical Center dental clinic. Dr. Brady requested a CAT scan of claimant.
After the CAT scan was done in September, claimant was seen by Dr. Brady and Dr.
Webster and they scheduled claimant for surgery. The surgery was performed on
December 5, 2002 at the Westchester County Medical Center. After the operation,
claimant was sick to his stomach and was vomiting. He was administered Percocet
for pain. He remained at the Medical Center for six days. He was then
discharged to the Sing Sing infirmary where he continued to be monitored and
received pain medication for four to five days. Claimant testified that his
mouth was very sore and he could not really move it at all. Claimant was
returned to general population and had follow-up visits with Dr. Brady and Dr.
Webster. As part of his ongoing physical therapy, claimant was prescribed a
course of exercises to be performed three to four times a day. Soni, the
dentist at Sing Sing, continued to see claimant for six months post-surgery and
monitored his jaw.
In May 2003, claimant received medical clearance and was transferred to
Clinton Correctional Facility. He visited the dentist at Clinton two or three
times, but has not had any medical treatment since he left Sing Sing and he
stopped his physical therapy when he left Sing Sing. Claimant estimated that it
took a year for his jaw to feel comfortable and that even today his jaw locks
when he opens his mouth too wide. Claimant avoids apples and tries to chew on
his right side when he eats meat, toast or hard fruit. He sometimes has slurred
speech and spits when he speaks. Also, claimant still experiences sensitivity
under his eye and pressure on his cheeks from sunglasses.
Dr. Frederick Meiselman, an oral and maxillofacial surgeon, offered expert
testimony on behalf of claimant. Meiselman explained that claimant sustained a
depressed segmental fracture of the left zygomatic arch in three places. The
zygoma is the prominent portion of the cheek bone and the zygomatic arch is the
extension of the zygoma to the skull. When the zygomatic arch is depressed
inward, the space between the zygomatic arch and coronoid process of the
mandible (part of the lower jawbone) is reduced, which prevents the jaw from
opening and closing. Meiselman noted that claimant’s medical records from
St. Agnes, dated May 31, 2002, evidenced that claimant had a depressed fracture
of the zygomatic arch and “D/C [discharge] pt [patient] will follow with
possible OR [surgery]” (Ex. 2, p 5).
Meiselman opined that the treatment indicated for claimant’s fracture
was open reduction, as soon as possible, which meant no later than 10 to 14 days
post-injury. He further explained that, ideally, surgery should be done within
24 to 48 hours because fibrous tissue, which could form bone, develops between
the zygomatic arch and the coronoid process, thereby impairing the function of
the lower jaw. Meiselman testified that, within two weeks post-injury, claimant
could have had an extra-oral (outside the mouth) operation known as a Gillies
approach. This 20 to 30 minute procedure consists of a small incision on the
temporal scalp and a second incision in the temporal fascia. An instrument is
then inserted through the incisions to pull the zygomatic arch up by popping it
back into place. Within a few days of this type of surgery, the patient is
fully functioning and eating a normal diet.
Meiselman explained that, due to the delay in treating claimant surgically, a
Gillies approach was not available to claimant and therefore he had to endure
two more extensive procedures, i.e., a coronoidectomy and a zygomatic arch
implant. In the coronoidectomy, a portion of the coronoid process is removed,
which allows the lower jaw to regain function. The zygomatic arch implant
cosmetically reestablishes the contour of the face by use of a synthetic
substance (Medpor). While Meiselman conceded that the surgery performed on
claimant in December was proper, Meiselman noted that the operation took two
hours and that is three to four times longer than a simple Gillies approach and
thereby caused more trauma to the patient. Also, Medpor implants always pose a
possibility of rejection by the patient. Meiselman also conceded that the
post-operative physical therapy directed for claimant was proper (T:167).
Meiselman maintained that when the simple Gillies approach is performed, a
patient achieves a 100 percent result with no sequella from surgery. Meiselman
conceded that there are other ways to treat a fractured zygomatic arch; however
any surgery performed after the first 14 days post-injury exposes a patient to
greater post-operative morbidity. Meiselman opined that if claimant had been
examined by an oral surgeon within 24 hours of the fracture, surgery could have
and should have been performed at that time.
Meiselman conceded that the St. Agnes records which indicate “will
follow with possible OR” (surgery) did not specify that surgery was
necessary or that surgery should be done within a specified time period (Ex. C,
p 2; T:209-11). Meiselman could not answer whether St. Agnes had deviated from
good medical practice in their failure to operate on claimant because Meiselman
was unaware of the hospital’s relationship with the New York State
Department of Correctional Services (DOCS) or to an inmate patient (T:214).
Meiselman further explained that with non-inmate patients who present to the
emergency room with such an injury, an oral surgeon or other specialist would be
called in to evaluate the patient and the patient would be admitted immediately
and surgery would be scheduled within a day or two (T:215). Meiselman opined
that a deviation from reasonable medical care had occurred after claimant was
returned to Sing Sing. In his view, the facility was aware of claimant’s
fracture and malfunction and somebody should have addressed claimant’s
need for medical treatment. Meiselman noted that on June 19, 2002, when
claimant was examined by an oral maxillofacial surgeon at the Sing Sing dental
clinic, it was already beyond the time when the simple surgery could have been
performed on claimant. Meiselman testified that not all dentists and all
internists would know that there was a two-week window post-injury within which
it was best to address claimant’s injury. When asked to specify where the
deviation from medical care had occurred, Meiselman responded:
“[there are] multiple people to blame. I mean, he was referred back to
the prison, the correctional institute, where they were obviously aware that he
had fractures, and he was obviously in pain. He obviously had a dysfunction.
He also had medical issues prior to all this, and it would be my assumption that
somebody in the Department of Corrections Medical Department or Dental
Department should have seen to it that this patient was – got definitive
treatment within a reasonable period of time.”
Meiselman examined claimant in December 2005 and concluded that claimant had
excellent symmetry of his cheekbones and his lateral and protrusive movements of
his jaw were all within the normal range. However, claimant could only open his
mouth more than 11 millimeters (mm) wide without incurring pain and a normal
range for claimant would be 35 mm. Meiselman conceded that pain was subjective
and that he observed claimant open his mouth 12 mm when examined by
defendant’s expert (T:183). Meiselman also noted that, three days
post-surgery, claimant could open his mouth more than 25 mm (T:198) and,
approximately two months post-surgery, could open his mouth more than 35 mm
(T:246-47). Claimant continues to have numbness in his left cheek and
sensitivity to touch on the left side of his face. In Meiselman’s
opinion, this minor sensory nerve damage occurred during the surgery. Meiselman
further opined that if the sensitivity had not returned within 12 to 18 months
post-surgery, then it would not be likely to ever be restored (T:166).
According to Meiselman, had the Gillies approach been performed, these sensory
impairments would not have occurred because the Gillies approach does not affect
any of the neurological innervation to that area (id.). Meiselman
attributed claimant’s difficulty eating certain foods and an inability to
masticate to the development of scar tissue. He opined that, even with
extensive physical therapy, claimant would not likely regain normal full
mandibular functions (T:165). Meiselman concluded that the failure to perform
surgery on claimant within the opportune time frame was a deviation of the
standard of care (T:169).
Meiselman opined that if claimant had been seen by a maxillofacial surgeon on
June 19, 2002, approximately three weeks post-injury, surgery would have been
“definitely indicated and actually should have been done by this
time” (T:243). If claimant had not been seen by a specialist, then it was
a deviation not to seek out the opinion of a specialist (T:282).
Dr. Aman Bakshi, a primary care physician at Sing Sing, testified on behalf of
defendant. Bakshi examined claimant and ordered an x-ray be taken on May 31,
2002. The x-ray revealed a comminuted depressed fracture of the left zygomatic
arch. According to Bakshi, when an inmate suffers a fracture, it is Sing
Sing’s routine procedure to send the inmate to the emergency room at St.
Agnes “to have him seen by a specialist who deals with these things”
(T:318). Bakshi explained, “[w]e don’t deal with it. They tell us
what to do” (T:318). Bakshi completed the top half of a consultation
request form. The form accompanies a claimant to the hospital and the
consultant at the hospital reports on the bottom half of the form, which
accompanies the claimant when he is returned to the facility. The report
confirmed the diagnosis of the fracture and outlined as a plan, Tylenol PM for
pain PRN (as needed), follow-up Dr. Petti (Ex. A, p 155). Bakshi explained that
he never followed up with Petti because he was not affiliated with DOCS and
Bakshi could not follow up with someone who is not affiliated with the facility
(T:311-12). St. Agnes also returned another consultant form signed by Petti
which indicated: patient stable; discharge with follow-up; “possible OR
[surgery]” (Ex. A, p 476). Bakshi conceded that this was a vague plan,
but made no effort to find out what specifically should be done. He testified
“[m]y understanding is what he wrote. The patient is stable and there was
a possibility of operation in the future. He said the word possible OR.
That’s all he said.” (T:317). ***
“When he say [sic] that the patient is stable that means the patient is
stable, and there’s no -- you know, so -- and we admitted him for
(T:318). When claimant returned from St. Agnes, he was admitted to the Sing
Sing infirmary for observation to follow his vital signs, administer pain
relief, and provide a soft diet (T:319).
Claimant was discharged from the infirmary on June 3, 2002 with a soft diet
and a request for follow-up with an oral surgeon “[that] month” (Ex.
B, p 12). Bakshi explained that an oral surgeon only visits Sing Sing once a
month for a scheduled clinic. Bakshi indicated on the form that he requested
that claimant be seen “soon,” within “14 days” because
Bakshi wanted claimant to be seen at the next possible clinic (id.).
Bakshi did not indicate “emergency” or “urgent” because
St. Agnes had indicated that claimant was stable (T:330). Bakshi further
testified that, if claimant’s condition had been considered an emergency
or urgent, then St. Agnes “would have kept the patient and done the
surgery” (id.). Instead they returned the patient as
“stable” and indicated “possible surgery” (id.).
The bottom of the form noted “cancelled at provider request” (Ex. B,
p 12). Bakshi could not explain what this meant. Claimant was seen by an oral
surgeon at the facility on June 19, 2002 (T:347). Bakshi, as a primary care
physician without any dental or oral surgery training, did not know if this was
soon enough considering claimant’s fracture.
Dr. John Perilli, a general internist, testified that he has been employed as
the Facility Health Service Director (also known as the Medical Director) of
Sing Sing since December 2, 1999. Perilli is the highest medical authority at
Sing Sing. He supervises all aspects of the medical department and nursing
staff and has administrative supervision over the dental department. He reviews
all consults and is personally involved in all infirmary cases.
Perilli explained the course of treatment that claimant received. On May 30,
2002, claimant was seen in the Sing Sing emergency room and, through an
audiovisual hookup, Dr. Coggin at the Erie County Medical Center was consulted.
Coggin diagnosed a contusion on the left side of claimant’s face, but
determined that there was no eye entrapment and no entropion (inversion of the
eyelid). Involvement of the eye is a particular concern with facial injuries.
Coggin prescribed pain medication, ice packs and directed x-rays to be taken the
following morning. Perilli testified that Sing Sing recognized that claimant
had a zygomatic arch fracture and that the facility was limited in its ability
to handle acute facial trauma. Therefore, plans were made to send claimant out
for further evaluation and to confirm the diagnosis (T:392). A consultation
form was prepared for claimant. Sing Sing fills out the top part of the form
and the bottom part is completed by the outside consultant who does the
examination. The entire form is then returned to Sing Sing with the patient.
After claimant returned from St. Agnes, the bottom part of the consultation form
indicated “follow up with Dr. Petti” (Ex. A, p 155; T:396).
Perilli explained that there was never any follow-up with Petti because he
does not have a contract to provide care to Sing Sing inmates. Sing Sing
employed three full time general dentists and had a contract with a Dr. Moore,
an oral maxillofacial surgeon, to conduct an oral surgery clinic once a month.
Specialists, like Moore, have no restrictions on their outside practices and,
according to Perilli, are independent contractors.
Claimant returned from St. Agnes with two consultation forms which diagnosed
the zygomatic arch fracture. After reviewing the forms and claimant’s
x-ray, Perilli made the medical assessment that it was an isolated fracture,
with no other facial trauma, no nerve root compression (T:418; Ex. A, pp 155).
Perilli stated that, in the absence of nerve root compression, a zygomatic arch
fracture is “not a life threatening fracture” and “it’s
treated as a cosmetic defect” (T:498-99). In Perilli’s opinion,
claimant’s condition was not an emergency requiring “urgent
operative intervention” (T:419) or surgery within a two week period
(T:497). The progress notes of claimant’s stay in the infirmary indicate
that claimant was alert and orientated with no edema and clear eyes (Ex. A, p
Perilli testified about the June 3, 2002 request form for an oral surgeon
consult signed by Bakshi and requesting a consult “soon,” within
“14 days” (Ex. B, p 12). Perilli’s signature also appeared on
the document indicating that he had read it. All consults are reviewed by
Corrections Physician Service (CPS), an HMO, contracted to evaluate, approve or
deny requests. CPS arranges appointments. Perilli explained that
“canceled at provider request” indicated that a medical clerk at
Sing Sing had canceled the consult at Westchester County Medical Center because
claimant was scheduled to see Moore at the Sing Sing oral surgery clinic on June
19, 2002 (T:428). While Perilli had approved the request for an earlier
consult, he was “medically overruled” by somebody else in Albany
Claimant visited Sing Sing’s regular dental clinic on June 5, 2002. He
was given antibiotics and put on a soft diet. On June 10, 2002, he was examined
at the dental clinic and it was noted that there was no sign of diplopia (double
vision) or fracture of the orbital floor. Claimant was kept on a soft diet and
given Naprosyn (Ex. B, p 2). On June 19, 2002, claimant was seen by Moore, an
oral maxillofacial surgeon. Moore is responsible for making recommendations to
the staff dentists at Sing Sing. Moore found, in terms of pupils, no evidence
of entrapment, and a depressed zygomatic arch. Under assessment, he wrote,
“[h]ealing zygomatic [fracture]” and the plan noted that he had
discussed with patient consideration for surgical intervention (Ex. B, p 11).
There was no indication there was a need for immediate surgery (T:437).
On July 15, 2002, Soni wrote that she talked to Bakshi about sending claimant
to an outside hospital. Claimant went to Westchester County Medical Center on
July 30, 2002 and the oral surgeon requested a CAT scan; it was approved for
early September. Soni spoke to the processing people in Albany to schedule
surgery at the Westchester County Medical Center. Perilli explained that there
are people in DOCS in Albany who serve as a liaison between CPS and Sing Sing to
schedule surgery. On September 17, 2002, Soni called Brady directly at
Westchester County Medical Center to try to expedite the surgery. Surgery was
scheduled for October 25, 2002, but then cancelled by the Westchester County
Medical Center. The surgery was rescheduled for December 2002.
After the surgery, claimant was directed to do jaw exercises twice a day.
Claimant’s dental progress notes reveal that, on December 17, 2002,
claimant was advised that he was doing the exercises too frequently and not
allowing the area to heal (Ex. B, p 7). On December 13, 2002, Weber noted
“normal healing” (Ex. A, p 163), and on the January 3, 2003
follow-up visit, he wrote, “[patient] much improved” (Ex. A, p 164).
Brady assessed claimant’s condition on February 14, 2003 as “good
healing. No problems detected” (Ex. A, p 162).
Perilli testified that he had read claimant’s x-ray. He knew that a
zygomatic arch fracture was not life-threatening in the absence of nerve
compression and, having seen hundreds of such fractures over the years, he
thought it would be operated on eventually. As a general rule, he knew that if
surgery is delayed it may result in the need for a more extensive operation.
Perilli did not have any surgical or dental training and therefore relied on
Dr. David A. Behrman, a board certified oral maxillofacial surgeon, offered
expert testimony on behalf of defendant. Behrman testified that there are a
number of different approaches to zygomatic arch fractures, but that early
treatment, before 10 to 14 days post-injury, is easier (T:546). Behrman stated
that, even up to three weeks post-injury is still manageable (id.), but
“I don’t think I would want to go much longer than that if I could
avoid it” (T:547). He explained that after three weeks post-injury, it is
harder to regain the natural support of the arch and to get the reduction to
stay in place (id.). Behrman disagreed with Meiselman’s opinion
that surgery should be performed as quickly as possible. Behrman explained that
there is no emergency in this type of injury so you can wait for the swelling to
subside a bit and get a better look at the face (T:547-48). Behrman disagreed
with Meiselman’s opinion that with early intervention a patient would be
on a normal diet in a few days. Behrman stated that, even with an early
intervention, post-operative care required a restricted diet for four to six
weeks so as to not put stress on the arch reduction (T:552). Behrman also
testified that, if an early procedure is not performed, then the fracture can be
later addressed functionally with a coronoidectomy and cosmetically with an
implant. He described a coronoidectomy as a “simple procedure”
(T:549-50). He also stated that, in many cases surgery is unnecessary because
the fracture is not causing any functional problems (T:550-51).
Based upon Bakshi’s review of claimant’s medical records, Behrman
testified that claimant was sent to St. Agnes for evaluation and treatment and
the emergency room physician called in Dr. Petti, an oral and maxillofacial
surgeon, for a consult. As noted in the record, Petti’s treatment plan
was to discharge claimant and follow up with possible surgery (Ex. C, p 6).
Behrman opined that at that point it was not clear whether Petti felt that
surgery was necessary and there was no indication that claimant had to be
evaluated for surgery within a particular time frame. According to Behrman,
“[i]t’s the responsibility of the consultant specialist, the person
who has been asked to take responsibility to do just that and manage the patient
accordingly and be very clear in any statements, to follow up accordingly, to
arrange tests accordingly, to do all of the things that they are supposed to
do” (T:559). Behrman insisted that he would expect Petti to call the
personnel at Sing Sing and not the other way around. Behrman concluded that
Petti deviated from the standard of care by just “[dropping] the
ball” and not following up on claimant (T:615). From his experience,
Behrman would not expect a referring internist or regular dentist to know that
there was a 10 to 14 day window within which it was most desirable to perform
Behrman examined claimant at Sing Sing and noted that claimant still has
decreased sensitivity on his left cheek and discomfort opening his mouth wide
and pushing his jaw to the left. Behrman opined that claimant’s condition
will remain the same unless he does additional exercises. Behrman attributed
claimant’s current complaints to the surgery and the initial injury. He
qualified his opinion by explaining that it was not possible to determine
whether the surgery or the injury were the cause of his lack of sensitivity and
limited range of movement. He stated that, even if claimant had surgery within
the earlier window of opportunity, claimant’s results were normal sequelae
of surgery and a common result from this type of injury. According to Behrman,
the same sequelae would exist regardless of the timing of the surgery. Behrman
stated that it is to be anticipated that, after a blow hard enough to break a
zygomatic arch, a person will experience tightness and not be able to open his
mouth as wide as in the past. Behrman measured claimant’s ability to open
his mouth as 30 mm, which should be sufficient for any future dental work.
Behrman, like Meiselman, agreed that it was preferable to perform the
operation within 10 to 14 days rather than after three weeks. He explained that
at the earlier time it is easier to just pop the zygomatic arch out and not have
to insert an implant. This simple procedure takes 15 to 20 minutes and the
patient heals easily. There is no need to remove the coronoid process and the
possibility of an infection from the implant is avoided.
The Sing Sing request for an oral surgery consultation dated July 7, 2002,
signed by Soni, indicated “[patient] needs surgery at this time”
(Ex. C, p 13). Behrman conceded that he would expect surgery to be performed,
if possible, within two months. Behrman further conceded that it would have
been preferable to operate before October 25, 2002, the first scheduled date for
surgery, and certainly before the eventual date of the surgery in December 2002.
Nonetheless, Behrman maintained that the date of the surgery did not negatively
affect claimant’s outcome.
Behrman opined that the medical personnel at Sing Sing did not deviate from
the standard of care. In his view, they are not trained to treat the problem
and did all that could be expected of internists and regular dentists.
It is well settled that the State owes a duty of ordinary care to provide its
charges with adequate medical care (see Mullally v State of New
York, 289 AD2d 308; Kagan v State of New York, 221 AD2d 7, 8). To
prove that the State failed in its duty and committed medical malpractice,
claimant must establish by a preponderance of the evidence that the State
departed from good and accepted standards of medical care and that such
departure was a substantial factor or a proximate cause of the alleged injury
(see Mullally v State of New York, supra; Kaminsky v
State of New York, 265 AD2d 306). Claimant contends that defendant was
negligent in its failure to schedule claimant for surgery in a more timely
fashion and that the delay in failing to have claimant’s injury addressed
surgically until six months post-injury caused claimant to endure increased pain
and suffering and necessitated a more complicated surgical procedure and caused
claimant permanent harm.
Defendant maintains that it did provide claimant with adequate medical care by
promptly examining claimant and sending him to St. Agnes for further examination
and treatment by a specialist. Defendant emphasizes that the records from St.
Agnes indicate that Dr. Petti directed follow-up with possible surgery; however
Petti did not indicate that the need for surgery was imminent, nor did he
provide any time frame within which claimant should be followed up for further
assessment as to the possibility of surgery. Defendant maintains that it
properly relied on Petti’s evaluation as a specialist from St. Agnes, and,
without any specified time directed by Petti, the June 19, 2002 follow-up visit
with the oral surgeon, Dr. Moore, was timely and not warranted any earlier.
Additionally, defendant notes that Moore, another specialist, did not feel that
claimant’s condition was emergent and needed immediate surgery.
Accordingly, defendant maintains that it again properly relied on the expertise
of a specialist and the surgery performed in December 2002 was not unduly
delayed. Defendant also argues that, if there was any departure from the
standards of adequate medical care, then the departure is attributable to Dr.
Petti and Dr. Moore, who are not State employees, and, therefore, defendant
cannot be held liable for any negligence attributable to them. Finally,
defendant argues that claimant has failed to show that any delay in scheduling
claimant’s surgery was a proximate cause of claimant’s
post-operative condition because it was just as likely that claimant would have
had the same results even if the surgery had been performed within the optimum
While there are instances where a defendant may avoid liability on the basis
of its deferral to a specialist’s expertise (see Wasserman v
Staten Is. Radiological Assoc., 2 AD3d 713), or on the basis of the
negligence or malpractice of physicians who neither employed by defendant nor
within defendant’s control (see Hill v St. Clare’s
Hosp., 67 NY2d 72; Warden v Orlandi, 4 AD3d 239; Rivers v State of
New York, 159 AD2d 788), this, however, is not such a case because
defendant’s liability does not hinge upon a finding of negligence
attributable to Dr. Petti and Dr. Moore. Rather, this Court finds that, without
reaching the issue of whether Dr. Petti and Dr. Moore were negligent, the record
supports a finding of negligence attributable to defendant for its own decisions
and management of the treatment rendered to claimant during his incarceration
(see Datiz v Shoob, 71 NY2d 867; see also Mandel v New York
County Pub. Adm’r, 29 AD3d 869, 870-71 [“Although the mere
referral of a patient by one physician to another does not generally render the
referring physician liable for the negligence of the treating physician
(citations omitted), joint liability may be imposed where the referring
physician was involved in decisions regarding diagnosis and treatment to such
an extent as to make them his or her own negligent acts”]).
Claimant has demonstrated a basis for holding defendant liable for its own
continued care of claimant after he was examined only once by Petti in the
emergency room at St. Agnes and then returned to defendant’s custody for
possible follow-up surgery (see Oelschlagel v United Parcel Serv.,
23 AD3d 359 [single examination by physician did not render him responsible for
patient’s care subsequent to that consultation]). The Court is mindful
that Petti did not specify a time period within which to follow up with claimant
regarding the possibility of surgery. Nonetheless, claimant’s condition
and repeated complaints of pain, difficulty eating, and significant weight loss
should have prompted defendant to address the possibility that claimant might
need surgery sooner and to schedule claimant for a follow-up visit with a
specialist in a more timely fashion.
Accordingly, this Court finds that defendant was negligent in failing to send
claimant for follow-up as was needed and that this delay contributed to
claimant’s continued pain and suffering, and his lost opportunity for a
timelier and less invasive surgical repair. Defendant’s expert conceded
that early surgery provides for the option of a less invasive procedure with
fewer potential risks. Claimant was not afforded that option because of
defendant’s negligence in its management of claimant’s care while in
its custody. Defendant’s expert further testified that he would not have
wanted to delay surgery on claimant any longer than three weeks post-injury.
Defendant’s expert also testified that he would have expected surgery to
be performed before October 25, 2002 and certainly before the eventual date of
surgery, six months post-injury. The Court finds the testimony of Sing
Sing’s medical director to be cavalier in his characterization of
claimant’s need for surgery and Perilli’s assumption that claimant
would eventually be operated upon. The Court rejects defendant’s attempt
to avoid all liability by shifting the blame on those whom defendant asserts are
independent contractors for whom defendant may not be held liable (see
Soltis v State of New York, 172 AD2d 919; Casucci v Kenmore Mercy
Hosp., 144 AD2d 910). Rather, the Court finds the State must be held 100
percent liable for its own negligence in providing less than adequate care to
In assessing the amount of damages to be awarded claimant, the Court has
considered that claimant’s post-operative reports indicate that he had
good healing and that claimant has not needed any significant medical care since
the surgery. The Court also notes that claimant’s ability to open his
mouth without pain is somewhat subjective and his examinations by different
doctors were not wholly consistent. Additionally, claimant’s own expert
could not confirm claimant’s contention that his jaw locked. Upon
consideration of all the evidence, including listening to the witnesses testify
and observing their demeanor as they did so, the Court finds that defendant is
100 percent liable for claimant’s injuries and claimant is entitled to an
award of $75,000 for his past pain and suffering and $15,000 for
claimant’s future pain and suffering.
It is further ordered that, to the extent that claimant has paid a filing fee,
it may be recovered pursuant to Court of Claims Act §11-a(2).
All motions not previously ruled upon are hereby DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
November 14, 2006
Plains, New York
HON. TERRY JANE RUDERMAN
Judge of the Court of
. References to the trial transcript are
preceded by the letter “T.”